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CRI/T/21/2005 IN THE HIGH COURT OF LESOTHO

In the matter between:-

REX

vs

KEKETSO LEKOTA JUDGMENT

CORAM : HON. MR JUSTICE S.N. PEETE ASSESSOR: MR M. NTSOELE DATE : 27th MARCH 2006

Indictments

[1] The accused, Keketso Lekota, a male mosotho adult aged about twenty one years (21) appears before this court charged with the crime of murder, of robbery and of unlawful possession of a firearm to wit: a pistol 9mm contrary to the provisions of section 3(1) and (2) of Internal Security Act No. 17 of 1996 as amended by Arms and

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Ammunition Act No.4 of 1999, the crown alleging that on the 17th day of March 2004 and at or near Malealea in the district of Mafeteng, the accused acting in the course of armed robbery did unlawfully and intentionally kill one Sabastian Horsten, a German national of the Federal Republic of Germany; on count two it is alleged that on the 17 day of March 2004 the accused used force and violence to induce submission of one Tobias Aldenhoff, also a German national and did then and there take and steal from his person certain property to wit a wallet containing M500.00 plus bank cards and identity cards; on the third count it also alleged that the accused contravened provisions of section 3 (1) and (2) of the Internal Security Act No. 17 of 1996 (as amended by Arms and Ammunition Act No.4 of 1999) by unlawfully having in his possession a 7.65mm pistol serial No.E20016 and two rounds without holding a valid firearm certificate in force at the time.

[2] I have in the judgment upon application for discharge of this accused commented about the inelegant manner in which the indictments were presented; according to the evidence, the accused did not act alone but in concert with another man - Qenehelo Lillane - now deceased. Whether dead or alive and thus not before court, the indictment ought still to have alleged that the accused acted in concert (common purpose) with the said Qenehelo Lillane. This omission was however not fatal to the charge sheet inelegantly as it stood and before addressing court at the end of the proceedings, Mr Lenono made an appropriate amendment and this was consented to by Mr Phoofolo who is appearing as Pro Deo counsel for the accused.

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[3] To these charges, the accused, pleaded not guilty. Pleas of "not guilty" were thus entered in respect of all counts which the accused is facing in this trial.

Evidence

[4] Mr Phoofolo then formally made certain admissions of the following facts in terms of section 273 of the Criminal Procedure and Evidence ActNo.9of 1981:

(a) That the deceased Sabastian Horsten died as a result of a gun shot wound which caused a cardio pulmonary bleeding or haematoma — the bullet having penetrated through the heart ventricles. These were the results of an autopsy conducted on the 18th March 2004. This Report was marked Ex"A".

(b) Also admitted was a more thorough postmortem report by one Dr Patricia Klepp in Gauteng in the Republic of South Africa. In her detailed autopsy she reports that a spent bullet was found lodged in the neck of Sabastian Horsten. This Report was handed in as Ex "B".

[5] Having made a brief opening statement, Mr Lenono, leader of the prosecution team, called P.W.1 one Khahliso Raelia, a 22 year old school girl who informed the court that she knew the accused quite well and that in March 2004 she was an attending scholar at the Malealea Secondary School located on the westside of Malealea

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Lodge, and that on the 17th March 2004 after her school had closed for the day, she was proceeding towards home in the company of her friends Majoalane Lesoma and Tsireletso Lesoma. It was in the afternoon.

[6] Having passed a road culvert, they came upon the accused and one man (later in this case identified as "Qenehelo Lillane") sitting next to an embankment along the Malealea road near the village of Ha Koepe. She says that Majoalane greeted the accused who then engaged her in some idle talk asking her the whereabouts of one Lefa and one Rathebane - his friends. She says she knew accused to be then living in Mazenod near Maseru at the time.

[7] She says that having left the accused and his friend behind, a red car then drove past going down towards the Malealea Lodge. The occupants of this car were two white people who even merrily waved as they drove past.

[8] She says after a short while she then heard a very loud sound as if something was falling and on looking back she saw the accused and his friend hurriedly running towards Ha Koebe and then into a tree plantation. From where they were she could not see the red car; they however proceeded homeward.

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[9] Whilst at the Paradise Pass she heard people shout calling Bereng saying, "Bereng ....come down ... a white man is dead". This Bereng, it came to pass, was a security guard employed by the Malealea Lodge and was usually manning a shack at the pass.

[10] She continued to inform the court that later that afternoon, as she and P.W.2 Majoalane were doing their school work and assignments at Ha Sekhampane, they saw another man and the accused who was - now wearing a white shirt - hurriedly walk past. They did not talk to them at this time.

[11] During cross examination she agreed that when they heard the bang or a loud sound they were then out of view and could not see the red car or the accused and his friend. She denied that she had been coached to say that accused had changed clothes in the late afternoon when she again saw them at Ha Sekhampane.

[12] Next called was Majoalane Lesoma, a 21 year old school girl. She informed the court that she also knew the accused well; she confirmed meeting the accused along the Malealea gravel road and that they also passed a red car which was travelling towards the Lodge; and that after it had disappeared from their view, they had heard a loud sound and that they had seen the accused and another man running from the direction of the sound and were running fast toward Ha Tsoeunyane. She also heard people shout "stop them ...those thieves... !" She says they then passed Matebele Cafe on their journey home.

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[13] At Paradise Pass she also heard people shout "Bereng ... come down ...a white man is dead". As already alluded to earlier, Bereng is a security guard stationed at the pass under the employ of the Lodge.

[14] She also confirmed that later that evening they again saw accused and his friend at Ha Sekhaupane - a village situated on the western side of the Paradise Pass and that accused then wore a whitish shirt; "they seemed to be in a hurry" she said.

[15] During cross examination, she agreed she could not see either the car or the accused when she heard a loud sound. The inspection-in-loco also confirmed this fact.

[16] More importantly, Mr Phoofolo then proceeded to put the version of the accused to P.W.2 as follows:-

"Accused says it is true you passed them near the culvert and that he and his mate were seated. Accused says his mate went to relieve himself under the culvert.... "

"Accused will also say that as a red car approached his companion Qenehelo suddenly produced a gun and said "Let us stop this vehicle ...I want to hijack it and strip it for car parts"!

"Accused will say he told Qenehelo that he would have nothing to do with the hijacking. He says Qenehelo then rushed into the road and stood in front of the vehicle pointing a gun as the driver approached, and the red car suddenly accelerated and Qenehelo jumped aside and immediately shot at the car. Things happened very fast. The vehicle went off the road and

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overturned; Qenehelo then rushed to this vehicle and demanded a wallet and a sports cap from the white man. Accused will say they then ran away ".

Answer: I hear."

[17] She told the court that the Malealea road is used frequently by tourists going to the Lodge in the panoramic valley below the Paradise Pass. It was then agreed by all that an inspection -in-loco was necessary to visit the terrain at Malealea.

Malealea-Inspection-in-loco - 18th August 2005.

[18] On the 18th August 2005, the Court travelled to Malealea in the district of Mafeteng for an inspection-in-loco and the following observations were made:

"(a) The Malealea Lodge is situated in a beautiful valley on the foothills of the Maluti mountain range in the district of Mafeteng.

(b) It is a renowned tourist attraction to many a tourist who visit the Lodge and its surrounding valleys all year round.

(c) Beyond the Paradise Pass, a gravel road then meanders down the hills towards the Lodge below.

(d) At a spot "X" along this road, the two girls pointed out the place where they found the accused and Qenehelo seated about 12 paces from the culvert.

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(e) At point "Y" some 212 paces up the road they pointed out a spot from where they heard the loud sound.

(f) From spot "Y", spot "X" is out of view.

(g) Also pointed out was the forest plantation into which the accused and his friend were seen running after the loud sound was heard.

(h) The girls also took the court to their home at Ha Sekhaupane from whether they had seen the accused and his colleague later hurriedly walking on the evening of the 11 March 2004.

(i) Trooper Moeketsi of the Lesotho Mounted Police Service also pointed out to a spot in the field next to the road where he found a red car which had apparently capsized and rolled but was then on its wheels with one tyre punctured. He also pointed to a spot nextby where he found the corpse of Sabastian Horsten lying prostrate."

[19] On the 22 August 2005, the court having reconvened in Maseru, the crown called No.9181 Detective Sergeant Moeketsi who informed the court that on the late afternoon of the 17/03/04 he was at the Matelile Police Post when he received a report that a white man had been killed at Malealea. He immediately rushed to the scene with one Sergeant Matjilo in a police van.

[20] He went to inform the court that at the scene they found many people already gathered and amongst them was one white man Tobias Aldenhoff who then gave them a full account of the shooting incident; lying next to the red corolla was the corpse of Sabastian Horsten.

[21] On inspecting the corpse, he found an open wound between the shoulders at the back. There was no exit wound.

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[22] Up the gravel road, Tobias indicated a spot where they were shot at and upon inspection he found a bullet shell of a 7.65mm.

[23] Having removed the punctured wheel of the red Toyota and fitted another tyre, they drove it to Matelile Police Station, Tobias having been taken to the Lodge below, possibly to recover and rest after what could have had been a harrowing experience.

[24] He says that the Matelile Police post, later that day, the accused and Qenehelo arrived under a police escort. Qenehelo had open wounds on his head. Who caused these injuries will be a subject of yet another inquiry. I have no commend to make at this juncture.

[25] He informed the court that the injured Qenehelo and the corpse were transported to Mafeteng Hospital that very same day of the 17th March 2006.

[26] He went on to inform the court that on the 18th March 2004, the accused led him to a spot amongst the fields and in a donga about two kilometers from the village, the accused lifted up a stone and picked up a black wallet from thereunder.

[27] The wallet was found to contain some bank cards and identity documents bearing the name of- "Tobias". No money was found in the wallet.

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[28] He went on to say at Malealea Lodge, on the 18th March 2006 Tobias Aldenhoff later identified the wallet bank and the ID cards as his property; he says these items were later released to Tobias as he was about to leave for Federal Republic of Germany on the very same day. The red corolla CA562 - 449 (a Cape Town registration) was driven to Mafeteng Police Station and later released to the car rental company.

[29] Under cross examination, he informed the court that he drew a sketch map of the scene, having cordoned off the area of the incident as there were inquisitive onlookers milling around at the scene. He admitted that the accused was not present when he took the measurements.

[30] To the question why he had not arrested the people who had allegedly assaulted Qenehelo, he replied that the matter was still under police investigation.

"Question: The accused will say that they (villagers) assaulted Qenehelo because they knew it was Qenehelo who had shot? ...even the money was found in Qenehelo's possession by Morai and Mokhachanel

Answer: I hear.

Question: Mokhachane will say Qenehelo took out the money?

Answer: I can't say.

Question: Accused says Qenehelo was taken to hospital on the 18th March 2004 - the following day?

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Answer: No.

Question: Qenehelo was assaulted by police with a baseball bat? Answer: I don't know

Question: Where is Qenehelo's postmortem report? Answer: I will bring it. It is in the docket at the DPP's office.

Question: Accused says he was severely beaten by the police with a baseball bat?

Answer: I hear.

Question: Accused will say that Qenehelo told you where the exhibits were?

Answer: I hear.

Question: When you took him to the donga, you forced him to go as Qenehelo was indisposed?

Answer: Accused was not forced. "

[31] He admitted that he had not recorded in the Police Occurrence Book that Qenehelo had been taken to Mafeteng Hospital on the 17th March 2004 but sought to explain this by pointing out that due to their hurried departure for hospital, he had forgotten to make the necessary entries.

[32] Next called was Trooper Morai P.W.4, a policeman stationed at Matelile Police Post who informed the court that on the 17th March 2004 as he was driving his car down the Malealea road he was flagged

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down by a white man who made a report about a shooting that had just occurred.

[33] Having stopped and alighted from his vehicle, he was led by the white man - Tobias Aldenhoff - to a damaged vehicle standing in the field next to the road. In the vehicle - which looked as if it had overturned and rolled off the road - he found the dead body of a white man slumped on the steering wheel of the vehicle.

[34] As he and the other people was taking him out of the car, he was informed by those rendering assistance in easing the deceased out of the car, that he was perhaps already dead. The corpse had a wound at the back.

[35] He says he then rushed back to Matelile Police Post where he made a report to Inspector Matjelo.

[36] He says that later that day when he was driving his car at Ha Sekhaupane village, he saw two boys running towards the T-junction above the Sekhaupane Secondary School. They hailed him to stop and that as they entered his vehicle, he recognized the accused and his companion from a previous encounter when they had asked to be transported to Motsekuoa to convey a letter concerning some bereavement a week before.

[37] He says that this time they again asked to be taken to Motsekuoa to take a letter of bereavement. He says he suddenly and intuitively

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became suspicious and cautioned and arrested them. And that after some prevarication, the accused told him he knew something and would take him to the place where the property was hidden.

[38] He continued to say that the accused then asked him to proceed to Moeaneng at the house of 'Maphakiso Mphomeli; and near a stone built house, the accused asked him to stop; many people had then gathered and Trooper Mokhachane was present. One Thabang Mphomeli came forward exclaiming '''Here are these devils ...and they are even wearing my shirts !"; and noticing Thabang's anger, he says he then closed the doors of his car.

[39] He says that Thabang then led him to his house and therein they found a sleeping infant on some bedding and Qenehelo proceeded to search for something. He says the accused then took out a gun - a 7.65 9mm from where the baby lay and gave it to him. He inspected the gun and discovered in the magazine some two rounds. It was serial number E20016 w. He says the accused also took out a "sporty" sunhat.

[40] He says it was at that time that Qenehelo suddenly bolted through the door and started fleeing from the house where upon the villagers chased him in hot pursuit.

[41] He says he remained behind guarding the accused while Inspector Matjelo also ran after Qenehelo.

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[42] He says that when they brought Qenehelo back, he saw that Qenehelo was limp and was being carried shoulder high by his pursuers; he had bleeding injuries.

[43] He says Inspector Matjelo ordered the people not to take law into their hands and ordered the accused to be taken into the awaiting car. The accused and Qenehelo were then transported to Matelile Police Post.

[44] He told the court that at the Matelile police station, Qenehelo - then unable to walk on his own - was carried out of the van and was made to sit on the stoep outside. It was then getting dark.

He then handed in the gun as "Ex 1".

[45] In his grilling cross examination, Mr Phoofolo sought to demonstrate some inconsistencies and discrepancies between his evidence-in-chief and his own written report which was admitted (undated) as "Al"

Question: In your report you say the accused took the gun out in Thabang's house...and Thabang says exactly the same.

Answer: Correct.

Question: What does Mokhachane say in his report?

Answer: He says accused and Qenehelo pointed out the gun.

Question: You purposefully tallied the witness's statement with yours?

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Answer: I did not do that ...in fact the witness would come and controvert that. A statement is often given to a witness to read and confirm before he signs it.

Question: The accused will say he never took out a gun and handed it to you?

Answer: He did so ...He knew Thabang's house ...Qenehelo did not know the owner of the house. It was the accused who led us to Thabang's house and not Thabang and Mokhachane.

Question: Did you body search the accused? Answer: Only at the police station.

Question: Matjelo then cocked the gun at them and ordered them to raise their hands up and lean against the vehicle?

Answer: Not so.

Question: Accused says the gun was handed by Qenehelo to Mokhachane?

Answer: Not so.

Question: Did you ask about ownership of the weapon and its registration papers?

Answer: I did. Accused just keep silent

Question: In your statement, you say accused said it belonged to his friend Lillane (Qenehelo)?

Answer: This was his ultimate explanation. Question: Did Qenehelo utter a word?

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Answer: In the house he said nothing. Later he was in a bad state. Qenehelo said the gun was his but he had no relevant papers.

Question: You wish to implicate the accused falsely about the gun?

Answer: No ...Qenehelo confessed that the gun was his and that he had no valid certificate.

Question: The accused will say Qenehelo picked out the gun as his own?

Answer: It was the accused who took it out.

Question: Accused will say Qenehelo never ran away because they were then harnessed with barbed wire?

Answer:' Not so.

Question: Mokhachane in his statement says he remained and you joined the chase?

Answer: I never followed

Question: Accused says you and Matjelo assaulted Qenehelo with a baseball bat at Matelile Police Post?

Answer: Not so

Question: Why did the people assault Qenehelo and accused?

Answer: People were saying that the accused and his friend had tarnished the good image of their area.

Question: The accused will say that because his shirt was dirty he went to the house of Thabang to change a shirt?

Answer: That I don't know.

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Question: Accused says he went there to dissociate himself from Qenehelo who was then armed with a gun ...he felt like a hostage?

Answer: I will refute that... they were together when I found them.

Question: Accused says at Thabang's house Qenehelo was wearing a greenish trousers and a maroonish shirt and no white shirt?

Answer: I deny that. Qenehelo had a grey flannel and a white shirt.

Question: Accused refutes your evidence that a week before you took them to Motsekuoa.

Answer: I certainly did. I even got paid M30.00 ...I was just helping them because they had bereavement.

Question: You run a taxi?

Answer: I don't ....If I did I could have long been dismissed.

Question: Accused says though he offered to make a clean breast of everything but you continued beating him?

Answer: He speaks no truth. He gave me a light brown sporty hat and M410.00

Question: Accused will say that prior to the shooting he never knew that Qenehelo had a gun?

Answer: That I don't know.

Question: Tobias in his statement makes no mention of finding you at the scene?

Answer: Tobias told me that his property had been stolen by Basotho boys.

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Question: In his police statement Tobias says that he was stopped by a man pointing them with a gun...Sabastian slowed the car down and the man shot from the right side and shot Horsten who then fell on to the wheel and the car then capsized...the man pointed him with a gun and demanded money and that he gave him M400.00 and his bank cards and one man said "Ho lekane" "that is enough"

Answer: I hear.

Question: The accused therefore says he is not responsible for the killing, the robbery and being in possession of the firearm.

Answer: This court will decide.

[46] Next called was P.W.5 No.9259 Trooper Mokhachane who informed the court that on the 17th March 2004, he was on duty at the Matelile Police Post at about 4 pm when a white man (Tobias Aldenhoff) in the company of another white man Steven of Malealea arrived at the station. Steven reported about the Malealea shooting incident. Almost simultaneously one Trooper Morai arrived in his Madza car requesting him to join him to proceed to Malealea.

[47] At Mantseli Y-junction they found a green citi-golf car being driven by one Moeketse who works at the Malealea lodge. He boarded this vehicle and all drove to Thabang's house at Moeaneng.

[48] After waiting there for about an hour, they then converged towards a car driven by P.W.4 from which the accused and Qenehelo got out. One Thabang Mphomeli suddenly exclaimed "Hei...Ebile ba apere

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lihempe tsa ka? ...Ebe ba li nkile kael [Translated: "Hey...they even have worn my shirts ...How come?]

[49] He says Trooper Morai then conducted a body search and M410.00 was produced by Accused from his shoe. This happened outside the vehicle. The people were angrily milling around and wanted to assault the two men.

[50] Inside the house, Qenehelo proceeded to uplift the blankets on the bed and then under the mattress, looking for the gun. He says Qenehelo took out skipper, a jacket and a sporty hat from under the pillow. The accused then came forward and uplifted a gun from under a pillow. It was a 7.65 pistol. Accused gave the gun to Trooper Morai. The firearm had two rounds of ammunition.

[51] He says that Qenehelo then suddenly bolted out running towards the road and the villagers followed in hot pursuit. Qenehelo was later brought back now with head injuries and was covered with blood.

[52] Having been transported to Matelile Police Post, the accused and Qenehelo were transported along with the dead body of Sabastian Horsten to Mafeteng Hospital where the latter was later certified dead. He says this was on the evening of the 17 March 2004.

[53] In his cross examination, Mr Phoofolo established that there were in fact two pillows on the bed in Thabang's house and that Qenehelo -

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and not the accused, had taken out the gun from under one pillow on which a baby was then sleeping.

[54] Trooper Mokhachane insisted that the R410.00 was taken out by the accused before they went into Thabang's house and not in the house as stated by Trooper Morai and that when the accused was asked as to whom the gun belonged, he replied it belonged to his colleague Qenehelo and that it was Qenehelo who had shot.

[55] Mr Phoofolo went on to ask -

Question: The accused will deny taking out the money but will state that it was Qenehelo who took out the money at the car?

Answer: Not so. ...The accused took out the money after the gun had been taken out by Qenehelo.

Question: Accused's taking out the money never happened? Answer: It did.

[56] Regarding the pointing out at the donga, questions proceeded thus:-

Question: Accused says you forced him to pick out the wallet at the donga?

Answer: He himself picked it up...!

Question: He says he told you that he had forgotten the place and the items i.e. wallet and ID cards had been in possession of Qenehelo who deposited them at the donga?

Answer: I hear.

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Question: Accused's defence is that he never killed the deceased? Answer: I cannot say

Question: He never took anything from deceased or Tobias. And the gun belonged to Qenehelo and not himself?

Answer; I hear.

[57] P.W.6 Thabang Mphomeli informed the court that on the 17th March 2004 towards evening, the accused and another man had arrived at his house in great haste reporting that they were being chased by boys from Malealea with whom they had quarrelled at the shop. They looked very frightened, he said. The accused was wearing whitish boots. After this the accused and his colleague went to snooker shop nearby.

[58] After a while, a policeman had arrived looking for the accused who and his companion were no longer at the snooker shop.

[59] He went on to tell the court that later that evening he found the accused and his colleague now in police custody and that the accused was now wearing a white shirt which he recognized as his own and when he asked the accused why he was wearing his shirt, the accused replied "Motsoalle o nkentse kahare..." (trans. "My friend has put me in trouble") and he understood that he was referring to Qenehelo.

[60] He went on to tell the court that the accused had explained to him that the gun was Qenehelo's and not his.

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[61] At the house, Qenehelo pointed and took out a gun from under a bed; and that the accused then bent down and took out some R300.00 from his socks.

[62] After this, he says that the hands accused and of his colleague were tied with wire; Qenehelo had been severely assaulted whilst in the house. He says the accused then took out another Ml00 and gave it to P.W.5 - after which he asked the accused to put off his white shirt.

[63] To Mr Phoofolo's questions, he admitted that Qenehelo was being assaulted by police in his house and explained that the police later even tried to persuade them to admit that they the villagers had assaulted Qenehelo Lillane as he tried to run away.

Question: Accused denies he took out money from his socks?

Answer: I actually saw accused take out the money from his right shoe. He did not take off the shoe. He merely pulled up the trousers and took the money from within his socks.

Questions: Accused says that from the moment the white man was shot, Qenehelo held him hostage and had ordered him to concoct the story that they were being chased by Malealea boys.

Answer: I can't say.

Question: Accused even later said "motsoalle o nkentse ka hare!"?

Answer: I hear.

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Question: Again under threats of Qenehelo, accused was ordered to change the shirt but at no time did he take out the money?

Answer: I saw him take it out.

[64] P.W.7, 'Maphakiso Mphomeli - wife of Thabang P.W.6 - also confirmed what her husband had said, namely that on the evening on the 17th March 2004, the accused and another man had arrived urgently reporting that they were being chased by boys from Malealea; they appeared very, very frightened.

[65] She says that at one stage the accused and his colleague left her home when she was escorting her visiting sister half-way and P.W.6 Thabang had gone to tend to his donkey that was grazing nearby.

[66] She says that after about an hour, accused and his colleague, now being escorted by police arrived at her home and that she later saw the accused produce money from his shoes; the policemen were explaining that the accused and his colleague had killed a white man.

[67] After all these, she says that the police then cut the fence wire and harnessed both men with it.

[68] Under cross examination by Mr Phoofolo, she admitted that police later visited the village several times after the 17th March 2004 trying persuade her and other villagers to admit that Qenehelo had been grievously assaulted by the villagers as he was attempting to escape.

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"Question: In your statement you are alleged to have said that Qenehelo ran down and was chased and assaulted by the villagers?

Answer: I deny this ....my villagers never assaulted Qenehelo. At my house I even heard the beatings and I even heard people say "the police will kill this person".

[69] P.W.8 Trooper Ntlhanngoe was then called by the crown and he informed the court that on the 17th March 2004 having received a certain report, he drove to the scene of the shooting where he found a red car CA 562-449 in a field just off the road culvert. He found a white man (Tobias Aldenhoff) standing by and another white man lying prostate in the field and appeared dead. The car was damaged on the roof and on windscreen. It appeared as if it had capsized and rolled off the road.

[70] He says that later drew a map - Ex "B" - after Tobias Aldenhoff had pointed out certain spots and paces had been taken by him.

[71] P.W.9 one Retselisitsoe Ntai aged about 17 was then called to give evidence. He informed the court that on the 17th March 2004, he and one Molefi had gone to cut fodder for his animals at Ha Koepe. He says he had seen the accused and another man sitting on the embankment along the road.

[72] After a short while, he saw a red car being driven by a white man and they saw accused and his colleague "blockade" it and soon afterwards

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they heard a gun shot and they saw the red car career off the road and capsize into a nearby field.

[73] He went on to say that he saw the accused and his colleague rush to the car and extend their hands as if demanding something. This occurred some 200 to 300 metres away. After this the two men started to run away towards Ha Koepe.

[74] He says that they then saw a white man emerge from the car and hurriedly beckon them with his hands to come and when they arrived, the white man shouted pleading "Malealea....Malealea Lodge ...!" pointing towards the Lodge. They then ran to the Lodge where they reported to one Steve who then immediately drove with them to scene and then Steve drove alone to the Matelile Police Station.

[75] He says later they saw a white man sitting prostate in the front seat of car.

[76] He admitted under cross examination that the police had taken down his statement on the 17/3/04.

"Question: In your statement you never said two men blockaded the vehicle?

Answer: I hear ... these things happened far back and I may have forgotten.

Question: Even after a month, you still did not tell the police that they blockaded the vehicle. You say this for the first time?

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Answer; I however deny that I have been influenced to say that they blockaded,... this happened long time ago.

Question: Accused denies stopping and shooting the vehicle or ever demanding something.

Answer: He denies what he did ...I saw it.... I was at the hillock. Question: Who shot?

Answer: The other man not here shot ...they ran side by side away from the scene ".

[77] P.W.10 one Tseliso Ntai aged 19 was then called by the prosecution to give evidence. He told the court that they had just unspanned their animals when they heard a loud sound and when they approached they saw two men running and one of them was the accused Keketso Lekota.

[78] When they approached the vehicle having been beckoned by a white man, they saw yet another white man, who appeared dead in the red car with a wound on the neck, and the car then stood on its wheels in a field off the road.

[79] The other white man pleaded with them to run to Malealea Lodge to make a report.

[80] Under cross examination he admitted that he was only told by the police later what the names of the two men were and that he himself did not witness the actual shooting at the scene.

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[81] Ms Makoko then read out the finding of a Ballistic Report- Ex"D" -authored by Inspector Pali of the Lesotho Mounted Police Service Headquarters in Maseru. It confirmed that the spent bullet was fired by the gun handed into court as Ex 1.

[82] [On the 22/9/05 the crown then formally informed the court that Mr Tobias Aldenhoff who was then living in Dusseldorff in the Federal Republic of Germany had vowed never to set his foot in Africa again, let alone Lesotho, and that he was however willing to give evidence by telephone. This was immediately queried by Mr Phoofolo, understandably so indeed.]

[83] The Court then formally postponed the case to 25 October 2005 and ultimately on the 27th October 2005 having heard argument on both sides, the court decided that the evidence of Tobias Aldenhoff was essential to the just decision of this case (section 202 of the Criminal Procedure and Evidence Act 1981). It reads:

"202. (1) The court may at any stage of the criminal trial subpoena or cause to be subpoenaed any person as a witness or examine any person in attendance though not subpoenaed as a witness, or recall and re-examine any person already examined.

(2) The court shall subpoena and examine or recall and re­examine any person if his evidence appears to it essential to the just decision of the case. "

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[84] The court then considered all other options aimed at facilitating the obtaining of the evidence of Mr Tobias Aldenhoff. For instance, under section 211 of the Criminal Procedure and Evidence Act, this court could have taken his evidence on commission in the Federal Repubic of Germany but the court ultimately decided that the only feasible option was by video conferencing (see Judgment thereon)

[85] On the 6th December 2005 the Honourable Chief Justice having duly appointed the National Convention Centre in terms of section 10 of the High Court Act 1978 the court formally convened at 10 am at the said National Convention Centre to hear over a video link -via satellite the evidence of Mr Tobias Aldenhoff who was then in Dusseldorff in the Federal Republic of Germany. The exquisite arrangements for this evidence to be heard through satallite video link were expertly arranged by Ms Mosala of the Ministry of Foreign Affairs and Mr Sehlooho and other officers and technicians of the Ministry of Telecommunications. We thank them heartily for their professionalism in putting together all the electronic gadgetry, thus connecting our National Convention Centre in Maseru, Lesotho via satellite with Dusseldorff in the Federal Republic of Germany.] Of course, Mr Phoofolo has already made some reservations about this method of procurement of evidence.

[86] Having been duly sworn over the video link, Mr Tobias Aldenhoff, from Dusseldorff then solemnly informed the court through a German official interpreter that he was willing to give evidence about what occurred on the 17th March 2004 along Malealea road but then told the

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court that he was certainly not prepared to come to Lesotho to give evidence under any circumstances. He was thus not a compellable but a willing witness whose evidence was material and essential to the just decision of the case.

[87] It must be made very clear that the court conscientiously exercised a judicial discretion in this matter as it was entitled to do so under section 202 of the Criminal Procedure and Evidence Act of 1981.

The court must always balance the paramount interests of justice against any possible prejudice to the accused in deciding whether to call mero motu a witness not subpoenaed by the crown in a criminal case. The phrase "essential to the just decision of the case" was discussed in the Natal case of R v Singh 1943 NPD 232 where Selke J. held that the question or calling a witness not called by the crown should be governed by the consideration that the primary function of the court is to come to a just decision of the case and if in doing so this necessitated a departure from the usual order in which evidence is always presented in a criminal trial, then so long as the departure did not prejudice the accused in the conduct or presentation of his case ... "nor can I discern anything in section 210, nor in its context to indicate that different principles should govern the operation of the section where the evidence sought to be admitted favours the crown, from those which should govern its operation where the evidence favours the defence. It seems to me that the dominant consideration in either case is that justice should be done between the crown and the accused". See generally the full note in Swift - The South African Law of Criminal Procedure - general comment under Section 210,

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Rex v Hepworth - 1928 A.D. 267 at 277 per Curlewis J.A.; R v Majosi - 1956 (1) SA 167; R v Kubeka 195 (3) SA 691 at 694 per Ramsbottom J.

[88] Tobias Aldenhoff then told the court over the video link that he was a German national aged 30 years old and was unmarried - and that in March 2004 he had visited Lesotho with one Sabastian Horsten and had arrived on the 17th March 2004. Having entered Lesotho through the Lesotho Maseru Bridge, they had travelled southwards towards Malealea Lodge the district of Mafeteng in a hired red Toyota corolla.

[89] He informed the court that they drove southwards till they turned towards the Malealea Lodge in the Mafeteng district. Sabastian Horsten was at the wheel. He went on to tell the court that having taken some scenery photographs en route, that they were suddenly confronted by two men one of whom jumped into the road blockading the road suddenly pointing a pistol at their vehicle.

[90] He continued-

"Sabastian Horsten- at my urgent behest - then drove more slowly and drove past the person with the pistol on the left hand side. After we had passed, the man with pistol I then heard a shot and I ducked and bent down immediately and shouted to Sabastian Horsten that he should drive quickly away from this place but then I immediately saw that his head was hanging and drooping over the front safety belt and he was no longer able to answer or to speak. The car continued to go, obviously the gear was still in place. "

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[91] It is not in dispute that the red corolla went out of control, then careered off the road and rolled over several times before coming to a standstill on its wheels on a field nearby. One of its tyres had punctured.

[92] He says all his attempts to get response from Sabastian Horsten were in vain. He continues:-

"A short time later two men came down from the road ... and the person who had shot then pointed the pistol at me over Sabastian Horsten and shouted something which I understood as "money" ... so I handed over to him my purse which contained bank cards and some money and the man shouted something which I understood as "cell-phone". I looked around the car but due to the accident, I had dislodged my glasses and because of pieces of broken glass and blood I could not find the cell phone so I could not give it to him ...One of the men opened the back door and saw the rucksack of Sabastian Horsten and having peered into the car, to him he looked at the contents of the ruck sack and the contents appeared to be of no value ...they left the scene of the crime. "

[93] Questions by the Court:

Question: "Who was this other man? You described two men; and that one other man was holding a gun and had pointed it at you ...was it the same man who was holding the gun or the other man who ransacked the bag?

Answer: I am unable to say this from my recollection. I don't remember anymore and it could have been the man who was holding the gun but I am not sure...I am not sure....

Question; How did you feel during this experience?

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Answer: ... What has to be added here is that my eye sight is very bad and on top of that, I had dislodged my glasses as a result of the accident. "

[94] Tobias Aldenhoff told the court that he succeeded to wriggle through the car window and managed to beckon at some children who were then standing nearby at the scene horrified and when they ran towards him, he loudly shouted "...Malealea ...Malealea Lodge..." And he says that these little kids ran to seek help. Upon turning to Sabastian Horsten, he found that Sabastian's face was now very pallid and completely grey!

[95] After some interval, a white man from Malealea (probably Steve) arrived and with the help of a policeman, they managed to drag Sabastian Horsten out of the car. Sabastian was then bleeding profusely already on the throes of death.

[96] He says that having been transported to the Malealea Lodge he spent the night at the Lodge and left Lesotho on the following day. The police at Matelile police post handed to him his purse containing bank and identity cards but minus the money; he was told the money had been recovered but would later be used as an exhibit in the criminal trial.

[97] To Mr Phoofolo's probing cross examination over the video link, Tobias Aldenhoff admitted that he later made a statement to the police and that he had even signed it. He also recognized his own signature

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over the video camera and admitted candidly that when the man who was brandishing a gun stopped them, the other man had stood by doing nothing. He told the court that he was just focussing on the gun-toting man!

[98] It should be pointed out that Tobias Aldenhoff gave his evidence over the video link quite candidly and lucidly. He clearly even conceded that his eye-sight was bad and that having dislodged his glasses in this encounter, he could not clearly distinguish who of the two men did what. Anyway, even though the accused was seated then in court at the Convention Centre and clearly visible to Tobias, Tobias was not asked -and correctly so - whether he could identify or recognize the accused as one of their attackers. Indeed Tobias was very candid enough to state that while the gun-toting man was shouting and demanding money and cellphones, the other man just stood by doing nothing.

[99] In response to the questions by Mr Lenono, for the Crown, Tobias Aldenhoff insisted that it was the gun-toting man who was furiously demanding money after the corolla car had overturned and car had stood on its wheels in the field.

***

[100] After the video evidence of Tobias Aldenhoff, and the crown having previously closed its case (as already alluded to) Mr Phoofolo then made an application for the discharge of the accused in terms of

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section 175 (3) of the Criminal Procedure and Evidence Act of 1981. This application was, as we all know, dismissed by this court for reasons stated in the judgment delivered on the 15th December 2005.

[101] Section 12 (7) of the Constitution of Lesotho reads:-

"No person who is tried for a criminal offence shall be compelled to give evidence at the trial"

The provision is absolute in its terms. The accused is free to give evidence at his trial or he can elect to remain silent.

[102] Section 175 of the Criminal Procedure and Evidence Act No.9 of 1981 reads thus:-

"/ 75 (4) At the close of the evidence for the prosecution the judicial officer shall ask the accused, or each of the accused if more than one, or his legal representative, if any, whether he intends to adduce evidence in his defence and if he answers in the affirmative he or his legal representative —

(a) may address the court for the purpose of opening the evidence intended to be adduced for his defence without commenting thereon;

(b) shall then examine his witnesses and put in and read any documentary evidence which is admissible."

[103] On the 7th February 2006, the accused elected, as he was entitled to so do, to give evidence on oath in his defence. He informed the court that

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he is 20 years old having been born on 16 June 1985 and that in March 2004 he was attending school at the Maseru Academy English Medium High School below Khotso Hardware in Maseru.

[104] He informed the court that on the 17th March 2004 he had journeyed to Malealea in the company of Qenehelo Lillane. The purpose of his journey was to go to his aunt's place at Tsea'nku in Malealea and that they travelled in a Teboho Bus Service going to Ribaneng in the district Mafeteng.

[105] At Sekhaupane village they alighted and decided to proceed to their destination Tsea'nku on foot. Having passed the Paradise Pass they walked down the gravel road winding down towards the Malealea Lodge which is situated in the scenic valley below.

[106] At a culvert, he says Qenehelo went into a donga thereby to relieve himself. Time was about 2.45 pm. He says that as he sat a distance from the culvert, three school girls came up along the road (probably from Malealea Secondary School) and that he then walked a short distance with one of these girls - Khahliso chating to her.

[107] As he returned to where Qenehelo was standing, a red corolla car then came down the Malealea road and as it approached Qenehelo suddenly said "Hey man... I want to take this vehicle ... you know our vehicle at home has problems"! To which he asked; "which vehicle? ". Qenehelo; "This very one. "

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[108] He says suddenly Qenehelo pulled out a gun from his waist, jumped into the road pointing the gun at the oncoming car. Qenehelo shouted "open the door for these people!" The vehicle stopped momentarily and started to move fastly forward. Qenehelo jumped aside and shot at the vehicle as it passed speeding towards the culvert. "I did not know that he had a gun." so says the accused.

[109] The car then careered off the gravel road and capsised and came to a standstill on its wheels. "I felt like running away on impulse ... but I turned back to look at the vehicle now standing in the field below ...I was very frightened and confused ... I had not expected this to happen ... we had not planned to do this." so the accused says.

[110] He went on to say in the whole operation he did nothing or render assistance to Qenehelo or take anything from the occupants of the vehicle. It was Qenehelo, he said, who rushed after the car, peered inside and opened the rear door. He says he witnessed these events from a distance of about 29 paces. From the car Qenehelo came to where accused stood and without further ado just said "Let's go " and he says he just followed Qenehelo as he started running into a nearby donga and running to Ha Koepe.

Question: Why run in the same direction as Qenehelo?

Answer; I was afraid he would shoot me as well if I took another direction. ...He just said "let go" I was afraid of his gun.

Question: Why run away when you had not shot anyone?

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Answer: I was afraid that he would shoot me because there were only two of us I was frightened and afraid of him -because he had shot and that the villagers would arrest me along because I was in his company. "

[111] He says they ran, until reaching Sekhaupane and boarded a taxi towards a snooker shop and together with Qenehelo walked to the house of Thabang Mphomeli, his aunts' husband. He says Qenehelo was still holding the gun covering it with his hat. He says immediately after alighting from the taxi Qenehelo had said threateningly "If you implicate me ... I will shoot you ...if we are asked you should say that we are being chased by boys from Malealea. "

[112] He conceded that this was an outright lie; but he nonetheless told the concoction to 'Maphakiso Mphomeli. He says that inwardly he had intended to go to Thabang's house in order to seek their help thus extricate him from the mess.

[113] He described Thabang's house as a flat roofed house with a curtain dividing the middle. One portion being the living room and the other sleeping room.

[114] He says he proceeded to the sleeping room where he saw a child sleeping on a bed and a whitish shirt was spread nearby; he says Qenehelo then said "take this shirt and wear it in order to disguise as people of this area know you well" He says he did as requested and left his topper inside Maphakiso's house.

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[115] He says having worn the shirt they left Thabang's house and went to the snooker shop nearby where Qenehelo bought a litre of coke with which they quenched their thirst.

[116] He says having left Thabang's house he was not sure if Qenehelo still had the gun on his person; and did not think it wise to appeal to Thabang to extricate him from the mess he was in.

[117] From the snooker shop, he says Qenehelo led the way to a donga amongst fields about two kilometers away in the veld, and that inside the donga, he saw Qenehelo conceal a wallet under a stone. He says Qenehelo never showed him the wallet, its contents or give him anything. He says they continued walking down the donga till they emerged below the Sekhaupane Primary School. It was then towards sunset.

[118] At the bus stop Qenehelo stopped a 4+1 taxi in which they found two gentlemen. "It was Morai and Matjilo ". On being asked where they were destined to they said "to Motsekuoa"; explaining further that they had just delivered a letter concerning a soccer match.

[119] Having dropped a lady passenger, Morai then said "we are looking for some boys-one with a blue/white top and the other white boots.

[120] He says that he did not confess then as to what had happened because he still thought that perhaps Qenehelo still had a gun.

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[121] After they had alighted, he says they were immediately detained upon suspicion that they had killed white man and Mokhachane searched him and found M20.00 in his hip pocket and Qenehelo produced a wad of notes from his right shoe.

[122] He therefore refuted what Thabang and 'Maphakiso said about his taking out money from his socks. On being later cross examined he failed to attribute any cogent reason that caused 'Maphakiso to wail bitterly when she saw him take out the money.

[123] He continues to say that they all proceeded to Thabang's house where a gun was to be searched for and that Morai even made as if he was hitting him with a metre long baseball bat but actually hit Qenehelo quite hard on the shoulders. Qenehelo fell down bleeding.

[124] He says Qenehelo rose and went to the bedding and took out a hat which contained a gun.

[125] He explicitly denies that Qenehelo at one stage bolted and was chased by the villagers and the police. He says in fact Qenehelo was severely beaten by police whilst in Thabang's house.

[126] He admits that on the 18 March 2004 - now without Qenehelo who then was probably indisposed or already dead - he led the police to a donga in the veld below Ha Sekhaupane where he identified and pointed out a stone under which a wallet concealed by Qenehelo was found.

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[127] He says that Qenehelo spent the night of the 17th March 2004 at the police station and that he and another detainee carried Qenehelo to a police van which was to ferry him to the Mafeteng hospital early on the morning of the 18th March. He denied that Qenehelo had been taken to the Mafeteng Hospital on the 17th March 2004; he pointed out that the entry in the Mortuary Register was a sham and was "cooked" so as to show as if Qenehelo had died on the 17th March 2004.

[128] He says he was forced by the police to go to the donga and would not have led them there because, as he puts it, he "had forgotten" the exact spot where Qenehelo had hidden the wallet under a stone.

[129] Mr Phoofolo then specifically asked the accused about the money allegedly produced by him according to the police witnesses and 'Maphakiso; and the accused persisted that only M20.00 was found from his hip pocket.

Question: In the house you are alleged to have taken money out of your boots?

Answer: That is not true ...It was Qenehelo who took out the money M500) from his right shoe and gave it to Morai.

[130] He therefore refutes what Trooper Mokhachane testifies to that M410 was produced by him, the accused, on being searched. He says 'Maphakiso is also fabricating against him.

"I never took any money from Tobias at the scene nor received any from Qenehelo ... Qenehelo gave me nothing".

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[131] He continued to say that before he led the police to the donga Morai had clapped him "ka mpama". He says that he could not have taken the police to the spot otherwise because he had forgotten.

[132] Cross examination by the Mr Lenono

On being cross examined by Mr Lenono for the crown he admitted that on the 17th March 2004 he had been in the company of Qenehelo since they left Mantsebos in the Maseru district on that day. His errand was to go to Tsea 'nku Malealea to fetch some school books from one Tlali Lebitsa - who also owed him some money.

[133] He explained that at the scene of the shooting, Qenehelo had said his family car - a Nissan 1400 — had problems and wanted to "take the red car " for parts.

[134] Question: You behaved most extraordinarily ... here's a man with

you ...he acts unexpectedly and you stand by just watching?

Answer: That is what happened ....because I was not associating myself

Question: You did not call for assistance or intervention?

Answer: There were not options. He was my friend. I was very surprised. He just followed the car...I saw him shoot at the car and the car careered out of the road.

Question: Your version is not possibly reasonably true but a distortion of facts.

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Answer: I am speaking to truth.

Question: You acted under compulsion from Qenehelo for everything you did that day.

Answer: Yes, that is so.

[135] He refutes what Tobias Aldenhoff stated over video link that the two men approached the car; he says he watched everything happen from a distance of 29 paces and that he even took some two steps backwards after the shooting.

[136] He also denies that he approached the car and as PW9 Ntai says extended his hands into the car but he admits running away from the scene when Qenehelo started running and saying "Lets go ... I followed because I thought he would turn on me and shoot me"

[137] He explained that up to Thabang's house, Qenehelo was constantly at his side and the fear continued because as they approached Thabang's house, Qenehelo actually threatened to shoot him if he revealed the truth of what had happened.

Court: Did Thabang's presence not reassure you when you arrived at his place?

Answer: No. They (Thabang and his wife) soon went out of the house. But no one prevented me them from telling them ...Qenehelo was menacingly too near! I thought he might shoot me in their presence.

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[138] He explained that he changed into a shirt in Thabang's house because his sweater because, as he put it, his sweater had got soiled as they climbed out of a donga in their desperate flight and also to disguise himself.

[139] He further contends that even after they had departed from Thabang's house, he still feared that perhaps Qenehelo had not left the gun at Thabang's house but had concealed it on his waist under the shirt. Had he known that the gun lay behind concealed under a pillow in Thabang's house he says he could have immediately extricated himself. It however should be here noted that it required neither chivalry or heroism to have thrown himself into the hands of Thabang and his wife away from the bullish Qenehelo. In fact that is the main reason he had elected to go to Thabang's house.

[140] Concerning the M20.00 he says was found on his person by Mokhachane he conceded that he did not tell this to his counsel; as a result this fact was not put to Mokhachane, Maphakiso or Thabang.

[141] He conceded once again that 'Maphakiso had no good reason to falsely implicate him and tell the court that he, the accused (not Qenehelo) produced some M410.00 from his socks!

[142] Mr Phoofolo did not re-examine and closed his case.

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[143] The court then called one Thabo Makoko the keeper of the Mafeteng Hospital morgue. He informed the court that his official duties involve reception of corpses into the mortuary. Corpses are brought either by police or by general public or by hospital wards.

[144] He keeps an official registrar to make entries as to the dates, times, names of the deceased, and persons who bring them. He told the court that when the police bring corpses they always sign "Matelile Police".

[145] The Mortuary register exhibited before the court showed that he made some entries on the 17 and on the 18 March. He went on to say that he knocked off from work at 4.30 pm on the 17th and started work on the 18th March 2004 at 8 am.

[146] The Mortuary register indicates that corpses of Qenehelo Lillane and of Horsten Sabastian were received at the mortuary on the 17 March 2004 at 21.30pm and signed for by "Matelile Police". He says he also had seen a body of a white man in the mortuary on the morning of the 18th and also that the body of Qenehelo Lillane had injuries.

[147] He pointed out that one Ntate Letsosa, now deceased, usually work on night shift at the mortuary and that according to the register Sabastian Horsten was later collected by the German Embassy officials on the 20th March 2004 after a post mortem examination had been conducted.

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[148] Under cross examination by Mr Phoofolo, he admitted that between 6 am and 8 am on the 18th March 2004 Letsosa and himself were not at the mortuary.

27th February, 2006 - Final Addresses.

[149] Mr Lenono, for the crown, addressed the court in support of the three counts. In the main he submitted that the accused was throughout a willing and cooperative partner in crime. He had been in the company of Qenehelo Lillane since they left Mantsebo on the morning of the 17th March 2005.

[150] He categorized his witnesses into three i.e. "scene" witnesses; flight witnesses and police witnesses.

[151] He relied upon the evidence of PW9 Ntai to submit that the accused was not just an innocent observer who stood some 29 paces away horrified about what Qenehelo was doing but did in fact approach the fallen vehicle immediately after the shooting. He submits that this approaching is in fact confirmed by Tobias Aldenhoff who stated in his evidence that the two men came down from the road towards the fallen car and that the gun-toting man demanded money and cellphone.

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[152] He earnestly urged the court to accept the evidence of these boys to the effect that after the car had careered off the road, the accused and Qenehelo had approached the car and that the version that the accused had stood some 29 paces be rejected as false.

[153] He also argued that even though the accused did not fire the fatal shot, he had been proved to have made common purpose with Qenehelo regard being had to the subsequent conduct of the accused i.e. running closely after or side by side with Qenehelo, leading him to Thabang's house where a gun was concealed by Qenehelo after a concocted story of being chased by Malealea boys had been proferred, together going to a lonely donga some two kilometers out of the Sekhaupane village and there Qenehelo concealing a wallet containing Tobias's cards; walking briskly there after till they were arrested.

[154] Mr Lenono further argues that despite certain inaccuracies or discrepancies as to when, and how the money was produced, it is quite clear that the money - a wad of notes - had been produced by the accused - and at least not by Qenehelo. It was not the defence case that the money was planted by police.

[155] He argues that the production of the money even caused Maphakiso to wail and cry bitterly about what she witnessed. No motive to falsely implicate was suggested either to Maphakiso or to Thabang, though the accused belatedly did suggest such motive when he was being cross examined by the crown.

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[156] More importantly, it was only as he was giving evidence in chief that the accused pointedly told the court that only M20.00 was found on his back pocket when he was being searched by Mokhachane. Mokhachane was however not confronted with this version; indeed so, because even Mr Phoofolo had no instructions relating to this aspect. Mr Lenono described it as a fabrication recently made by the accused in manufacturing what he called a web of lies and was a figment of his cunning imagination.

[157] He asked the court to accept the evidence of Maphakiso and Thabang as truthful and honest. They had no cause to implicate their young relative in these dramatic events.

[158] He lastly urged the court to reject as false the version given by the accused that he was but an innocent companion whose friend and companion suddenly went beserk and started shooting at a passing motor car.

[159] Mr Lenono further submits that despite his plea of compulsion at the instance of Qenehelo, the accused had ample opportunity to dissociate himself from Qenehelo who, according to the accused, only began actual threats as they neared Thabang's house. He submits that he could have easily given himself in to Thabang - an older man - if at all he was being coerced.

[160] On the law, Mr Lenono, relying on Snyman - Criminal Law (1996), submitted that where two or more persons are charged with having

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committed the crime under common purpose, it is not necessary to show that each accused causally contributed to the act. He cited the often quoted cases of S v Sefatsa - 1988 (1) SA 868 and of S v Mgedezi - 1989 (1) SA 687.

Mr Lenono submits that irrespective of who fired the fatal shot, the accused is liable under common purpose because he actively associated himself with the perpetrator.

[161] He further submitted that the acts and behaviour of the accused were throughout queer and bizarre and unworthy of credence and seem to be a ruse well calculated and fabricated after Qenehelo's untimely death.

[162] Mr Lenono concluded by saying that the accused must be convicted of all three counts as a socius criminis and not as an accessory after the fact, or receiver of stolen goods.

[163] Mr Phoofolo, on behalf of the accused, in the main submitted that the evidence adduced by the crown failed to demonstrate beyond doubt that it was the accused who shot the deceased but instead, the crown evidence clearly pointed that it was Qenehelo Lillane who shot at the car on the 17th March 2006.

[164] He submits further that in this trial, no prior agreement or plan was proven and that liability of the accused, if any, that may attach may only arise from the fact of his presence at the scene, awareness on his

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part that Qenehelo had a gun he might use with fatal consequences, intention to make common purpose and "performing some act to manifest his intention to actively associate" himself with the perpetrator. R v Mgedezi (supra)

[165] Mr Phoofolo went on to clarify that coercion or compulsion that is pleaded by the accused relates "only to the events after the shooting perhaps as being related to the issue of being accessory after the fact ... his compulsion is not raised in relation to the death of Sebastian Horsten"

[166] He submits that in the absence of proof that prior agreement existed between accused and Qenehelo to rob or waylay the motorists, the accused can only be liable if it is shown that he knew that Qenehelo had a gun and foresaw that Qenenelo would use that gun.

[167] He submits that the evidence in court of PW9 that he saw two men "blockade" the car is not to be relied on because PW9 did not mention this in his statement to the police and that Tobias Aldenhoff stated that a the man pointed a gun at the car while the other man just stood by.

[168] He submits therefore that the crown had totally failed to prove any active association before and during the shooting, and that what the crown had succeeded only to do was perhaps to show that the accused associated himself with Qenehelo after as an accessory to which the accused pleads compulsion.

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[169] In the meantime, the court had brought to the notice of both counsel the judgment of the Full Bench of the Constitutional Court of South Africa in S v Thebus 2003 SA 505 (6) SA 505 - per Moseneke J. His learned dictum postulates thus:

"The doctrine of common purpose is a set of rules of the common law that regulates the attribution of criminal liability to a person who undertakes jointly with another person or persons the commission of a crime''' Para [18] - Burchell and Milton - Principles of Criminal Law....

"...The doctrine of common purpose dispenses with the causation requirement. Provided the accused actively associated with the conduct of the perpetrators in the group that caused the death and had the required intention in respect of the unlawful consequence, the accused would be guilty of the offence. The principal object of the doctrine of common purpose is to criminalize collective criminal conduct and thus to satisfy the social need to control crime committed in the course of joint enterprises. [R v English - [1997] 4 All E.R. 545]. The phenomenon of serious crimes committed by collective individuals, acting in concert, remains a significant societal scourge. In consequence crimes such as murder, robbery ... it is often difficult to prove that the act of each person contributed causally to the criminal result. Such a causal prerequisite for liability would render nugatory and ineffectual the object of the criminal norm of common purpose and make prosecution of collaborative criminal enterprises intractable and ineffectual " - p 527. [Para 34]

See also S v Nooroodien - 1998 (2) SACR 510.

More importantly, the learned Judge stated that whether or not active association has been appropriately established will depend upon the factual context of each case - p.531.

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[170] Mr Phoofolo argues that "active association is a converse to passive association" and he quotes R v Ndebu 1986 (2) SA 133 per McNally JA at 136; and that whereas the accused in the present case was admittedly present at the scene, without prior agreement with Qenehelo, he had just beheld the brutal events taking place before his eyes; and that the accused could neither stop Qenehelo before events happened fast and he was also frightened and confused. "Accused never expected these events ... there being no prior agreement ...Accused did not know that Qenehelo had a gun. "

[171] He submits in the circumstances that the accused only became aware of the gun when Qehenelo suddenly declared his intention "to take the car" and forthwith produced the gun. His was only "mere presence" and nothing else.

[172] He further argued that the criminal liability, if any, of the accused's version must be treated individually and weighed against the crown evidence; and that if there is a reasonable possibility of its being true, regardless how slightly so, the accused must be acquitted.

[173] Mr Phoofolo submits that in standing petrified as events occurred before his eyes, the accused might indeed have not acted morally but certainly he had not acted illegally. He was under no obligation to stop Qenehelo from committing these crimes (Nkau Majara v Regina - 1954 HCTLR 38 (HL) or to come to the aid of the victim.

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[174] Mr Phoofolo further submits that even having witnessed the shooting by his colleague, his flight from the scene does not suffice "without having done something". Accused did not ask Qenehelo to run away nor he did not advise Qenehelo to hide the murder weapon in Thabang's house.

[175] Mr Phoofolo then sought to distinguish the case present case from the R v Monaleli - C of A (CRI) No.6 of 2004 where defence of compulsion has been raised by the accused. He pointed out that in the case of Monaleli, a clear prior plan to rob a shop at Maputsoe had been established and that when the fatal shots were fired at the shop assistant, the accused and his accomplice had stood together and were then demanding money. His plea was dismissed by the trial court and by the Court of Appeal of Lesotho.

[176] He submits that in the present case there being no prior agreement there is no subjective foresight (dolus eventualis) and that the requisite mens rea is lacking and a verdict of murder or even culpable homicide is not possible upon the evidence adduced.

[177] In citing the case of R v Ndebu - 1986 (2) SA 133, Mr Phoofolo submits that "for there to be dissociation there must be a prior active association and that since there is no clear evidence that the accused associated himself before or during the shooting, we cannot talk about dissociation."

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[178] Instead, he continues, much of what the accused is supposed to have done, was done only after the shooting. Active association, he argues, means doing something in furtherance of the execution of the unlawful objective. Standing by and doing nothing is not doing something, he expostulates!

[179] He further argues that it is wrong for the crown to contend that "accused did not do this and that ... therefore he thereby associated himself" The hard-core evidence - as he puts it - is that the accused did nothing that manifested a common purpose in the act of killing the deceased Sabastian Horsten.

[180] As regards the second count of robbery, Mr Phoofolo, upon the same reasoning, argues that the crown evidence, especially of Tobias, indicated clearly that it was Qenehelo who committed the robbery -though he conceded that in law the accused's liability may rest upon common purpose and degree of his association or participation.

[181] He argued that the evidence of PW7 Maphakiso that accused produced money was not satisfactory in many respects and was confused and needed corroboration or confirmation before it could be relied on; and that Thabang's testimony on this aspect was also suspect in that he first says accused produced M300 and then later produced M100.

[182] Mr Phoofolo could not however explain satisfactorily why his client at that point in the case failed tell him timeously that only M20.00 was

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found on him by Mokhachane. He however stoically argued that the weaknesses of the accused's version must be carefully pitted against the glaring contradictions in the crown's case.

[183] He lastly argued that since Qenehelo was dead, the accused was being falsely connected with the finding of the gun and Mr Phoofolo therefore prayed for an acquittal on the third count.

[184] In conclusion, Mr Phoofolo formally placed it on record that the court in ordering for the evidence of Mr Tobias Aldenhoff to be taken through a video link amounted to a fatal irregularity because it sought not only to clarify issues but to establish a fact material to the crown's case (R v Jonathan - 1932 TPD 44).

The Law

[185] As in all criminal cases, the onus is on the crown to prove its case beyond a reasonable doubt i.e. that the accused committed the act or acts charged as the actual perpetrator or as socius criminns and that all requisite elements of criminal liability have been proven, [cf Para 87 (supra)]

[186] The onus that is cast upon the prosecution is premised upon section 12 of the Constitution of Lesotho 1993 under which "every person who is charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty ".

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[187] Each case must, of course, depend upon its own particular facts and circumstances i.e. facts (or evidence) adduced by the crown in support of the charge or charges, its credibility and reliability. Thus, for example, where a crown witness saw an accused shooting or stabbing the deceased and the witness is honest and reliable, it is not difficult for the court to conclude that the crown has discharged the onus that rests upon it. (Section 238 of Criminal Procedure and Evidence Act No.9 of l981)

[188] In this criminal trial, it is fair from the onset to state that the inquiry will be a rather limited one because the accused admits his presence -i.e. being in the company of one Qenehelo Lillane -when the latter shot at the car being driven by the deceased Sabastian Horsten on the 17th day of March 2004 along Malealea road in the district of Mafeteng. The inquiry will be limited to active association, if any, on his part.

[189] There is no direct evidence that prior to the shooting, the accused and Qenehelo Lillane had formed any agreement to rob or waylay or hijack any motor vehicle along the Malealea road on the 17 March 2004. If any agreement existed, it was not proved nor can this court legitimately infer such plan from the proven facts of the case.

[190] It cannot however be lost sight of the fact that the accused was not just a bystander at the scene, but had been in the close company of his friend Qenehelo Lillane from Mantsebo in the Maseru district till they reached the lonely Malealea road in the district of Mafeteng. He was

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indeed his constant companion for the whole day of the 17th March 2004 till the moment of their arrest in the evening.

[191] A court of law should realize that in a robbery or hijacking case, it is not very frequent to have garnered before it, reliable evidence about any prior agreement to commit the robbery or hijack. It is often from the acts and from the conduct of the participants during and after the perpetration of a crime that a common purpose can be inferred by the court. Magmoed vs Janse van Rensburg - 1993 (1) SA 777 at page 810 (H). [See our para 228]

[192] In my view, the concept of "active participation" as a basis of criminal liability of a socius criminis who does not physically commit the crime (actus rens), must not be given too narrow an interpretation such as to require a positive act being done in furtherance of the common objective otherwise a devious socius may escape liability nor should this association be given too wide an interpretation because the other innocent persons can be caught in the net.

[193] Wisdom commends the middle approach which, in my view, should be determined by or depend upon the circumstances of each particular case e.g. whether the accused actively associates himself with the commission of the offence will depend upon many a factor such as presence at the scene which is not innocent, accompanying the perpetrator after the commission, sharing the spoils of the crime, and failing to dissociate himself at earliest opportunity or by rendering assistance to perpetrator to evade justice. It is the train and chain

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events which leads from one incident to the other that should be looked at.

[194] For instance, in the case of S v Petersen 1989 (3) SA 420 it was held that where two persons take part in a robbery and one of them fatally injures the victim and the other acts in a manner which indicates that he associates himself with what has happened, such later conduct can often be used as a basis of an inference that he foresaw the possibility of the victim being killed and acted in a reckless disregard thereof. But whether such an inference is justified depends on all circumstances of the particular case. See also R v Jama - 1989 (3) SA 420 - R v Monaleli - C of A (CRI) No.6 of 2004 - CRI/T/64/01

[195] It has been stated by some South African Courts as trite principle that where it is sought to hold one person liable for murder committed by another on the basis of common purpose as outlined in S v Mgedezi -1989 (1) SA 687, the court must not adopt a global view of the totality of the defence evidence and impute liability but should consider the criminal responsibility of the accused individually and subjectively. In the case of R v Ramonyatsi 1980-84 LAC 251 this was confirmed and Schultz JA went even further to define the separate or unique liability of an accessory after the fact as being someone who after the commission of the offence knowingly joins or intervenes to help the perpetrator evade or escape justice. A distinction must indeed necessarily be drawn between a socius criminis and an accessory after the fact. A socius criminis as a co-perpetrator may also aid and assist the actual perpetrator even after the commission of the offence to

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evade justice; he does not thereby ipso facto become an accessory after the fact. He remains a socius criminis throughout - S v Dlamini - 1984 (3) SA 360 where it was held that an accomplice in a murderous assault should not escape conviction for murder simply because quite fortuitously the injury which causes death has been inflicted before his participation commenced. Where therefore an accomplice therefore joins in a common purpose to kill, his liability for death of the deceased caused by the perpetrator depends on whether, at the stage when he commences to perform an act in furtherance of the common purpose, the deceased is still alive even though the act which causes his death may have been completed. In the case of R v Mtembu 1950 (1) SA 670 Schreiner J.A. had this to say-

"A person may be liable for a crime actually perpetrated by another without having agreed with him or given him a mandate to commit the crime; as a rule assistance and agreement may go together; but there may be cases where the assister is liable for the act of the perpetrator without any agreement with the latter at all, even such agreement as may have arisen on the spur of the moment and may be inferred from the fact of more or less simultaneous attack upon the victim "

Proven Facts

[196] For purposes of record, the following are the facts which this court find stand proven-

(a) that on the 17th March 2004 accused and Qenehelo Lillane were in the company of each other from Mantsebo in the

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Maseru district till they reached Malealea road in the Mafeteng district a distance of many kilometers.

(b) In the afternoon of that day the accused, still in the company of Qenehelo Lillane were seen sitting on the kerb or embankment of the Malealea road on the hillside.

(c) Some two girls having walked past, a red corolla car drove towards the accused and Qenehelo and it was being driven by one Sabastian Horsten, Tobias Aldenhoff as passenger.

(d) Qenehelo then suddenly ran into the road brandishing a gun and blockading the vehicle which as it attempted to drive past was shot at and bullet mortally injuring Sabastian Horsten. Sabastian died soon thereafter.

(e) The red corolla careered off the gravel road and capsized in a nearby field and having stood still it was immediately approached by the two men.

(f) Tobias Aldenhoff was robbed Qenehelo Lillane of money and his wallet containing ID and bank cards.

(g) The accused and Qenehelo Lillane were then seen running away from the scene of the shooting.

(h) The Accused and Qenehelo then later arrived at the house of Thabang Mphomeli (PW7) in the village of Sekhaupane a few kilometers away.

(i) The Accused and Qenehelo then concocted a story to Thabang that they were being chased by some boys from Malealea.

(j) Accused then changed into a white shirt.

(k) A gun - a murder weapon - was then by Qenehelo hidden somewhere in Thabang's house.

(1) The Accused and Qenehelo then walked out of the village

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and in a donga some two kilometers away there hid a wallet containing ID and bank cards belonging to Tobias Aldenhoff.

(m) The two men were later arrested and at or near the house of Thabang the accused produced some money from his socks and Qenehelo produced a gun inside Thabang's house.

(n) Qenehelo suffered some grievous injuries during or after his arrest and these resulted in his untimely death.

[197] It is against the backdrop of these salient facts that the cogency of the evidence of the crown, and of the defence should be weighed and assessed bearing in mind throughout that the paramount onus lies and rests upon the prosecution to prove as in this case - that the accused actively associated himself in the execution of the crimes charged.

[198] I have already said something about the tenuousness of the phrase "active association" and that care should be taken not to it extend it to mean "active participation" or "cooperation" as requiring a commission of a positive act.

[199] Care must also be taken to avoid blindfoldedly treating each witness's testimony singly or in isolation from the rest of the evidence led throughout the trial. Such piecemeal approach often fails to take cognizance of other proven facts of the case. In the case of R. v Mtembu it was stated by Schreiner J.A. at p.679-680:

"...But in any event it is not clear to me that the crown's obligation to prove the appellant's guilt beyond reasonable doubt required it is negative beyond reasonable doubt all

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pieces of evidence favourable to the appellant. I am not satisfied that a trier of fact is obliged to isolate each piece of evidence in a criminal case and test it by the test of reasonable doubt ...But that does not necessarily mean that every factor bearing on the question of guilt must be treated as if it were a separate issue to which the test of reasonable doubt must be distinctly applied."

[200] The dictum often cited from S v Singh 1975 (1) SA 227 has stood the test of time and is worth reciting. It reads-

"It is quite impermissible to approach such a case thus: because the court is satisfied as to the reliability and credibility of state witnesses that therefore, the defence witnesses including the accused must be rejected. The proper approach in a case such as this is for the court to apply its mind not only to the merits and demerits of the state and defence witnesses but also to the probabilities of the case. It is only after so applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond reasonable doubt. The best indication that a court has applied its mind in the proper manner in the above-mentioned example is to be found in its reasons for judgment including its reasons for the acceptance and rejection of respective witnesses."

This statement was followed by the Court of Appeal of Lesotho (per Trengove JA) in Nkoli v R - 1990-94 LAC 113.

[201] The brisk question in casu should and must be: Upon the totality of evidence and probabilities, was the accused probably and demonstrably an innocent companion of a bullish Qenehelo who suddenly buttressed and coerced him into cooperation on that eventful afternoon? Why, without any coercive order from Qenehelo did he

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just join the brutal killer in approaching the fallen car and thereafter joining in Qenehelo in his desperate flight? Why did he escort Qenehelo to the house of Thabang, and there concoct a false story of being chased by boys from Malealea? Why did he fail to confess all in the presence of Thabang, a much older person? Why did he fail when Thabang and Maphakiso were testifying to assert that only M20.00 was found on his back pocket? Instead, in my view, the accused's version and explanation is replete with stories that are vocal now because Qenehelo is dead. Dead people speak no more.

Compulsion - plea of

[202] Whereas our common law recognizes the defence of compulsion or coercion duress, as a matter of judicial policy the courts of law necessarily must adopt a cautious approach in assessing reliability of this plea, and thus the courts are always careful to balance this plea against the greater interest of the public to be protected from criminals who can sometimes later assert that they acted under compulsion to commit crimes which violate the mortal interests of innocent beings. See generally R v Damascus - 1965 (4) SA 603; R v Chipesa -1964; (4) SA 474 (SR); 1967 SALJ 145.

[203] Robbery and hijacking by their evil nature necessarily involve elements of secrecy and surprise. The police, let alone courts of law can never know what really happened immediately before the perpetration of the crime. An assertion by one person in the group that he merely stood by doing nothing or had disavowed the criminality, or that had associated only under compulsion should not exonerate him

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unless it can be shown on a balance of probabilities that he was an innocent by-stander or was present at the scene against his will - R v Botso Mashaile - 1971-73 LLR 148 at 163 C.

[204] Whether an acquittal should occur on the grounds of compulsion in any given case should necessarily depend on the particular circumstances of each case and the whole factual complex of the case must be carefully examined and adjudicated with greatest of care -Rex v Goliath 1972 (3); SA R v Petersen 1980 (1) SA 938; Snyman - Criminal Law p. 115; Hunt - SA Criminal Law and Procedure Vol. 1 page 288.

[205] Indeed, in my view, there must always be evidential foundation that the accused was caused by someone to do something against his will. The compulsion may range from a gentle or subtle persuasion or exhortation to actual threats of immediate death or serious physical injury. (S v Mucherechedzo - 1982 (1) SA 215 (ZS)

[206] Perhaps a decision to rob or hijack was made by Qenehelo on a spur of the moment as a red corolla came into view and approached them and without any communication whatsoever or concurrence on the part of the accused, but an association is proven when one has regard to the fact the accused, at a mere invitation "lets go" and without any overt threat, immediately joined the gun-toting Qenehelo in his flight from the scene. It is from the events that occurred before, during the hold up and at the shooting and afterwards that a court of law can

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justly make an inference that the criminal conduct in this case was a concerted or collective one.

[207] Indeed the defence of compulsion has been considered in several cases - R v Werner - 1947 (2) SA 828 at 837 (per Watermeyer JA); R v Mneke - 1961 (2) SA 243-4; S v Bradbury - 1967 (1) SA 446. In an old (liretlo) Lesotho case of Khotso Sephakela v Regina 1954 HCTLR 60 at 62-64 (Privy Council - H.L) Lord Keith had the following to say about murder committed under compulsion:-

"There remains however the question whether there was any evidence on which it could be held that the appellant acted under compulsion. In their Lordship's opinion the evidence falls far short of what is necessary in law to establish such a defence. They consider it clear that the appellant was present on the night of the 20th August as a participant in what he knew was to be an act of murder. That he himself struck none of the fatal blows, or indeed none of the blows at all, is nothing to the point. He was one of a party engaged in the common purpose of murder. There is nothing to suggest that he dissociated himself from that purpose by attempting to escape before the attack on the deceased had begun and the plot had passed from preparation to perpetration. Whether when he did attempt to run away he did so from fear, or from repentance, or for some other reasons, their Lordships do not know, because he gave no evidence in that matter. But on any view there is nothing in the evidence relied on to show that the appellant was brought to the scene of the murder under compulsion or came to the scene accidentally and was made to take part in the attack on the deceased under compulsion. Whether the restraint used upon the appellant could have been relied on as dissociating him from the murder if exercised before the act of murder had been entered upon is a matter upon which their Lordships find it unnecessary to express an opinion. In their Lordships' view there is nothing, in the evidence on which it could be held that

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the appellant was in such fear of death or serious bodily injury as to establish the defence of compulsion. Even if the appellant's attempt to escape proceeded from repentance it came when the murder had reached a stage of perpetration and too late to dissociate the appellant from the consequences of the criminal design. "(My underline)

[207] Whereas according to the jurists of the classical Roman Dutch law, the question of compulsion was left open - Digest 9.2.49.1; Voet's Commentary on the Pandects - Gane's Translation - the question crisp today should be whether the compulsion, legally or morally considered, should be exculpatory or be merely mitigatory. This necessarily involves a value judgment upon facts and circumstances of the case.

[208] Even Professor Gordon in his Criminal Law of Scotland (p.373) suggests that there should always be a fine balancing of interests of an innocent deceased and those of an accused who is subjected to compulsion; consequently issues of disproportionateness of the crime to the harm threatened come to the fore.

[209] In the case of R v Hercules 1954 (3) SA 826 at 831H-832 832 it was held (per Van den Heever J.A.) that upon the ground of sacrosanctity of human life, a killing of a human being can never be justified even in the circumstances in which the accused was compelled by threats of immediate death or serious injury. Kenny - Criminal Law postulates an extreme view that compulsion does not excuse murder and the court will not readily accept that coercion existed unless it is a case of absolute coercion. The plea of compulsion is therefore, as a matter of

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judicial policy, to be jealously and carefully scrutinized. An inquiry certainly should involve a subtle comparative evaluation of social interests and, as already stated, a value judgment over a conflict of interests.

[210] In the present case whilst it can and must be assumed in the accused's favour that he was not the one who pressed the trigger of the lethal weapon, his criminal liability depends and has to be considered upon what happened at the scene and indeed afterwards. The evidence of P.W.9 and of Tabias Aldenhoff is there crucial.

[211] His belated version that only M20.00 was found on his back pocket demonstrates him to be an outright liar who concealed this fact even from his counsel or fabricated it at the very late stage. This negatively far outweighs any apparent discrepancies in the evidence of Thabang and 'Maphakiso, whose evidence this court nonetheless believes on this aspect of the production of money. They had no motive or reason at all to implicate their young relative.

[212] The demeanour of these witnesses is even fortified further by their outright condemnation of the apparent attempt by police to persuade them to say that Qenehelo had been brutally assaulted by the villagers after Qenehelo had allegedly tried to flee following upon their arrest. Furthermore, no plausible motive was shown why they would falsely implicate their cousin on a so serious a matter! A grudge was belatedly raised by the accused only under cross examination.

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[213] As already stated, the parameters of the defence of compulsion must be prescribed and confined within strictest and narrowest of limits because of the danger attendant upon allowing a plea of compulsion to excuse criminal acts. Voet 4.2.1 states that as a general principle that whereas fear of death or injury induced by one person is no excuse for injuring another, it operates in mitigation of punishment.

[214] Compulsion needs not just to be alleged but, in my view, it must also pass the usual test of reasonable possibility; and in this case whether the accused acted throughout under duress or compulsion can be inferred from the cumulative circumstances of the case, and from his associative conduct from the time of the shooting up until the moment they were arrested later that evening.

[215] Under our jurisprudence, the line between a socius criminis who is present when his accomplice executes the plot and they both flee and assist each other and that of an accessory after the fact who only after the event only aids and abets the perpetrator to evade justice is a clear one - the former actively associates before, during and after the commission of the crime while the latter, "knowing of the commission only comes into the picture after the commission" and aids the perpetrator to evade justice. R v Ramonyatsi (supra).

[216] Mr Phoofolo, never relenting, again ably submitted that the plea of compulsion raised only related to what the accused is alleged to have done or said after the shooting; but even then, he submitted that the accused even then could still not be found guilty as an accessory after

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the fact, because such compulsion exonerates him; the next pertinent question would again be: wholly or partially?

[217] It is rather ingenious to suggest that the inquiry should disregard, divide or separate the association before shooting and subsequent cooperation between the two men. The court can infer common purpose if after the commission of the crime, two persons cooperate with one another - R v Petersen (supra); to fail to so infer would allow fanciful pleas such as compulsion, fear, revulsion, pity, cowardice, etc. to exculpate criminals.

Police witnesses

[218] Mr Phoofolo disparaged the evidence of the police witnesses, their integrity, demeanour and reliability. The duty of police under the Constitution of Lesotho 1993 and the Police Service Act No.7 of 1998 is to maintain law and order in Lesotho and to investigate offences committed and to bring culprits to justice. Theirs is a very onerous job often performed under the very trying and sometimes under very difficult of circumstances. Under all civilized systems, police violence or high handedness wherever it occurs is always deprecated by the courts of law - Sello v Commissioner of Police -1980 (1) LLR 158 at 168 (per Mofokeng J.); the police investigators must always seek to diligently discover the truth of what happened without violence, distortion or fabrication. Distorted or fabricated evidence - regardless of motive — often can result in a miscarriage of justice e.g. an innocent man may be convicted and, indeed, sometimes be hanged or the guilty may go scot-free! I can only go this far,

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without casting any blame or censure in this trial. Any censure may if necessary become appropriate in another forum if an inquiry into the death of Qenehelo Lillane is instituted.

[219] Mr Phoofolo, in his most powerful cross examination of some of these police witnesses, sought to demonstrate that some of the lay witnesses's statements were shown to have been cunningly modelled in a way; and this he did by showing stark differences between what these witnesses mentioned in their police statements and what they stated before this court under oath. Some of these discrepancies were quite apparent and glaring from the very record of this case which is quite lengthy; I however need not burden this judgment with their citation. Suffice it to state that where in this trial a witness has in his or her evidence-in-chief differed from his or her police statement, his or her evidence does not deserve an outright rejection but has to be treated with due caution and circumspection; for example, the evidence of Maphakiso and Thabang as well as of PW9 needed to be carefully treated and not to be relied upon unless confirmed.

[220] Most of the witnesses' written police statements were not made on oath and to say the least, they are very, very brief; there are some inexplicable cancellations; there are some police statements which do not even show who took them down. In passing, I should mention that since, under new practice, of late all police statements in the police dockets are always to be availed the defence, it is only proper that these statements must always be taken down on oath and with all meticulousness and without any additions or subtractions. Whilst any

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the deficiencies in the statements may demonstrate a dire need for an intensive police training in statement-taking, this ineptitude may sometimes facilitate for distortions of facts and indeed the untruths to occur. I make no judgment on this aspect save to say I have throughout treated the police statements and evidence with due caution in the face of the apparent embellishments and untruths.

[221] I must however mention the most intriguing features of these police statements. There are statements which state that the accused pointed out a gun in the house of Thabang whereas this was proved not so; and the one which states that the villagers assaulted Qenehelo after he had bolted away whereas Maphakiso and Thabang deny this; another states the money recovered was handed over to Tobias Aldenhoff whereas Tobias told the court that no money was given to him and was told that it would be held as an exhibit. All these smack of fabrications.

[222] Omissions should however always be distinguished from distortions or falsities. The omissions can be explained away by the witnesses while the latter may stick out like a sore thumb! This is what happened in this case. Qenehelo, and not the accused, picked out the gun in Thabang's house; Maphakiso and Thabang vehemently deny that the villagers ever assaulted Qenehelo that the local chief never made a report to the police about the death of Qenehelo. It is improper that police should build up a case with fabrications. Police should always investigate with all honesty and report the truth without any distortions whatsoever.

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[223] While Morai and Mokhachane state both in their reports and in their evidence before this court that the accused produced money after he and Qenehelo were arrested, they differ as to where and how the money was produced. But all these apparent discrepancies do not extinguish the fact that it was the accused who produced money from his person and that it was not only the M20.00 as the accused later sought to allege.

***

[224] In my view, it was not necessary in order to be liable under common purpose that he accused must have "blockaded" the car; because that would be requiring "active participation" in the execution of the plot.

[225] It must be noted that in their statements recorded on the 19th March 2004 both Ramolefi Ntai and Retselisitsoe Ntai mention that they saw two men "run towards the car..." that had just overturned. This was confirmed by Tobias Aldenhoff who from Dusseldorff in Germany stated that, as he remained trapped inside the vehicle, he saw two men come down from the road and one of them demanded money and cell phone.

[226] The critical importance of the cumulative evidence of these witnesses is that it shows that the accused was not, as he alleges, standing petrified with fear some 29 paces away. I have no reason to doubt the evidence of the two boys in this regard because they harboured no improper motive against the accused and because their evidence is furthermore confirmed by Tobias Aldenhoff. I however place no

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reliance at all upon the evidence that both the accused and Qenehelo jointly "blockaded" the car before the shooting.

[227] In my view, although the evidence adduced in this long trial shows no proof that Qenehelo and the accused had a prior plan or agreement to waylay passing motorists and to rob them or hijack their cars; it is clear that a spur-of- the-moment operation was immediately hatched and carried into execution. I reject as false that the accused was an innocent companion who stood petrified when Qenehelo blockaded the car and shot at it. He, the accused, also approached the vehicle after it had been shot and had capsized. The fact that he without furtherado immediately joined Qenehelo in advancing upon the fallen car demonstrates beyond doubt that the accused had just foreseen what would immediately happen and had reconciled himself therewith - S v Talane -1986 (3) SA 196.

[228] I am satisfied therefore that in advancing to the fallen car, with Qenehelo the accused was joining and associating himself in furtherance of this criminal objective. Indeed a wad of notes (certainly taken from Tobias Aldenhoff by Qenehelo Lillane) after a few hours were produced by himself later that day. He was sharing or keeping the spoils. The accused never ventured to say in court that Qenehelo had forced him also to conceal the money in his socks; instead he contends that his own R20.00 was found by Mokhachane when the latter searched him.

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[229] Qenehelo Lillane brazenly committed murder in his presence and proceeded immediately to commit robbery after they had reached the fallen car. The accused clearly associated himself with what Qenehelo did. In my view it was not necessary that he should have performed anything positive e.g. opening the car door or uttering a threat to the occupants or ransacking through their bags or rucksacks. I find that theirs was nefarious plot hatched on a spur-of-the moment and that even though the accused did not blockade the red corolla car or shoot at it, the only inference reasonable and irresistible is that the accused actively demonstrated his association in the operation in running or advancing towards the fallen car. His conduct thereafter confirms this overt association in cooperation. Common purpose arose, in my view, upon an impulse without prior consultation or agreement and as Corbett C J. put it in the case of Magmoed v Janse van Rensburg - 1993 (1) SA 777 at page 810 (H):

"It is seldom that there is direct evidence of such agreement Usually the court is asked by the prosecution to infer it from proven facts'''.

I reject as false his plea that he was overtaken by sudden events and was compelled or threatened by the now late Qenehelo into cooperation throughout the whole saga.

[230] Verdicts:-

Count one : Guilty as charged. Count two : Guilty as charged.

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Count three: I however acquit the Accused on count three on

the ground that there is insufficient evidence that he ever possessed or handled this gun or ought to have had a firearm licence relating to it.

A. Extenuating Circumstances

1. An accused who has been convicted of murder by the High Court may be sentenced to any sentence other than death if the court is of the opinion that there exist extenuating circumstances relating to the accused and commission of the crime of murder - Section 297 (3) of the Criminal Procedure and Evidence Act of 1981.

2. Persons convicted of murder who are under the age of 18 years can only be sentenced to be detained during the King's pleasure (section 297 (2) (b) of the Act (supra))

3. Extenuating circumstances have been generally defined as those factors not too remotely connected with the offence which tend to reduce the moral — and not legal - blameworthiness of the accused in the commission of the crime. They palliate the ultimate sentence of death - Lefaso v R - 1990-94 LAC 44 at 49 per Schutz P.

4. Mr Phoofolo relied on only one factor - youthfulness of the accused at the time he committed the act. He relied on the recent Court of Appeal case of Phamong Mohale v Rex C of A (CRI) 4 of 2005 in

which youth was considered an extenuating circumstance.

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5. The court agrees that this factor plus other factors such as lack of premeditation, lesser degree of participation all tend to reduce the accused's moral blameworthiness of this accused and these factors are quite apparent from the record of the case. The court accordingly finds that extenuating circumstances exist which oblige the court to impose a sentence other than death.

B. Crown: The accused has no previous convictions.

C. Sentence

1. As in almost every criminal case, sentencing of an accused is now at the judicial discretion of the court. In the exercise of this discretion - there being no fixed guidelines except from cases decided by the High Court and the Court of Appeal, the trial court always has to consider the seriousness, brutality or heinousness of the crime and the public's revulsion to its commission; its prevalence and need for deterrent punishment are also paramount considerations. As it is said: the sentence must fit the offence, the offender and society at large.

2. Personal circumstances of the accused such as youth, state of mind and others only serve to reduce the quantum of punishment ordinarily to be meted to an accused. We often speak of "balancing" but the right phrase should be "considered along with".

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3. In this case the callousness and brutality of the offences committed upon the two unwary tourists dumbfounds one's conscience. Though there is no evidence that it was a planned plot, its execution showed utter disregard to the sacrosanctity of human lives. Sabastian Horsten was brutally shot and he lost his dear life; his colleague Tobias Aldenhoff at gun point was robbed of his material possessions. He is lucky that he survived the terrible ordeal.

4. The crimes committed were indeed repulsive to the local Malealea community who offer their traditional Basotho hospitality to many a tourist. These crimes have tarnished the good name of the Malealea Lodge, its locals, and Lesotho as a tourist destination.

5. In punishing the accused, the court however must be careful not to unduly punish him for the grievous sins of Qenehelo Lillane, whom if he were still alive, the court would not have hesitated to impose the ultimate sentence of death upon him!

6. The accused, as a socius criminis must however receive his just deserts; evidence clearly showed that he did not press the trigger that fired the lethal gun; indeed it seems that Qenehelo exercised some great influence over him to induce his fateful cooperation throughout that day. Indeed at one stage he lamently bitterly "Oho ... Motsoalle a tla nkenya ka hare!!!" His youthfulness perhaps made him vulnerable to the bullish Qenehelo. The stupidity and

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doom of their plot are indicative of this immaturity. His guilt as socius criminis has already been proven before this court.

7. The court is deeply conscious of the grave loss the family and all friends of Sabastian Horsten have suffered, and indeed the Federal Republic of Germany has lost a citizen and an aspirant law student. The trauma felt has vibrated to this court through the sad words of Tobias Aldenhoff when he said that he would never again set foot in Lesotho.

8. The criminality that was perpetrated in this sad case merits all condemnation from all the right-thinking Basotho. In the case of S v Motolo - 1998 (1) SACR 206 Lombard J. in sentencing the accused convicted of murder and robbery had this to say-

u ...in cases like the present the interests of society is a factor which plays a material role and which requires serious consideration. Our country at present suffers an unprecedented, uncontrolled and unacceptable wave of violence, murder, homicide, robbery and rape. A blantant and flagrant want of respect for the life and property of fellow human beings has become prevalent. The vocabulary of our courts to describe the barbaric and repulsive conduct of such unscrupulous criminals is being exhausted. The community craves the assistance of the courts: its members threaten, inter alia, to take the law into their own hands. The courts impose severe sentences, but the momentum of violence continues unabated. A court must be thoroughly aware of its responsibility to the community, and by acting steadfastly, impartially and fearlessly, announce to the world in unambiguous terms its utter repugnance and contempt of such conduct.

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... That in considering a possible sentence of life imprisonment, the court has to assess whether the conduct of an accused in, during and preceding the commission of the offence was of so grave and repulsive a nature, that the community has to be protected against the onslaughts of such an unscrupulous aggressor by his removal from society for the rest of his life. "

9. The accused was just over 18 years and a first offender at the time of the commission of this crime. He was also an attending scholar at a local English Medium School in Maseru. These personal factors are however outweighed by the heinousness of the crime.

10. In the case of Motlatsi v DPP - 1995-1999 LAC 653 Gauntlett

JA had this to say:-

"Any sentence, it is well established, must balance the personal circumstances of the accused, the nature of the crime and interests of the community. Even allowing for each of the personal factors set out above, in my judgment the brutality of the offence and the need to protect the community and to give effect to its repugnance against such abuse of power as we have here require a far heavier sentence. "

I agree.

11. I am of the view that the sheer brutality and the callousness of the fatal shooting, and revulsion it invokes all call for a severe punishment.

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12. The death of Qenehelo indeed changed the ugly face and complexion of this case which has left many questions unanswered; were he before the court, the direction taken by the case could have been even more uglier. Agreement between the two could have perhaps been established and the issue of compulsion negated.

13. To a court of law, sentencing is usually not an easy but an agonizing task because of the conflicting interests that come to the fore with some decrying certain sentences as being too lenient and a travesty of justice and clamouring for more stiffer penalties: Hopefully in the very near future, there shall be put in place "Sentencing Guidelines" for use by the courts in sentencing process.

14. Justice must be blended and tampered with anera when appropriate. Indeed our Great Moshoeshoe I - once called the "Bismark of South Africa" - was very magnanimous and forgiving in instances such as these.

15. Even though the Federal Republic of Germany is a frontline state of the EU which is totally opposed to the imposition of death penalty which punishment is labelled cruel, inhuman and violative of human dignity, I would have had no qualms or hesitation in very easily imposing death sentence in this case - because of the sheer brutality and callousness of the crimes committed on innocent and unarmed tourists visiting Lesotho.

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16. I have spent a sleepless night agonizing and meditating over sentence. I even considered give the accused a very long salutary term of imprisonment. But the death of Qenehelo changed his fate. What actually transpired between him and Qenehelo shall for ever remain a mystery - the truth shall for ever remain in conscience of the accused. The evidence that has been adduced before this court points that accused's role was relatively minimal — he was under what one can call a spell in Qenehelo's presence. He is young but he stupidly let himself into an abominable plot in which an innocent young German tourist lost his precious life over a mean triviality. His parents are not proud of him and his nefarious acts.

17. As regards sentencing, I am of a steadfast view that the prosecution must always state their view and not always sublimely recline and say "we leave everything in the hands of the court" and then after the court has imposed a sentence then rise and lodge an appeal against the sentence! Crown Counsel are "officers of court" whose duty to assist the court ends not at conviction but extends even up to sentence. The next of kin of the deceased play no role at all - we can all but empathise! Indeed the late Mofokeng J (then a senior prosecuting counsel) once boldly stood up in court and earnestly submitted that extenuation existed in a proceeding case on appeal -whilst the defending counsel sat mesmerised at the bar!

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18. I always feel a deep sense of admiration of my Brother Molai J's appreciation of the sacrosanctity of human life because this value has been entrenched in the Bible (I hope even in the Koran) and is firmly enshrined in our Constitution of Lesotho. A sentence -regardless how long — can never replace and reparate life of a human being because such life is irreplaceable and sacrosanct.

19. SENTENCE: Count 1: Fifteen (15) years

Count II: 5 years

Both sentences to run concurrently and effective from the date of arrest.

Orders: 1. Gun Ex "1" to be forfeited to the State.

2. M410 to be returned to Tobias Aldenhoff through the German Honorary Consul in Lesotho.

20. Under law the accused has the right which is exercisable within 6 weeks of today to appeal against both or either the conviction and/or sentence to the Court of Appeal.

21. This Court indeed the whole Bench of the High Court of Lesotho also takes this opportunity to express its condolences to the family of Sabastian Horsten for the great loss and due sympathies to Tobias Aldenhoff for the hurts caused to him whilst in our country.

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We also commend Mr Phoofolo for his advocacy and fine skill in representing the accused Pro Deo; Mr Lenono, leader of the prosecution team is to be lauded to have traversed through what was a difficult case.

My Gentleman Assessor agrees.

S.N. PEETE JUDGE

For Crown : Mr Lenono and Ms Makoko

For Defence : Mr H. Phoofolo (Pro Deo)