Rex V Kets'epile Moeletsi & 3 Others (CRI/T/0043/2023) [2024] LSHC 113 (1 November 2024)

# Rex V Kets'epile Moeletsi & 3 Others (CRI/T/0043/2023) [2024] LSHC 113 (1 November 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/113/eng@2024-11-01) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/113/eng@2024-11-01) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/113/eng@2024-11-01) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/113/eng@2024-11-01) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Kets'epile Moeletsi & 3 Others …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/113/eng@2024-11-01) [ Download DOCX (40.4 KB) ](/akn/ls/judgment/lshc/2024/113/eng@2024-11-01/source) Toggle dropdown * [Download PDF](/akn/ls/judgment/lshc/2024/113/eng@2024-11-01/source.pdf) Report a problem __ * Share * [ Download DOCX (40.4 KB) ](/akn/ls/judgment/lshc/2024/113/eng@2024-11-01/source) * [Download PDF](/akn/ls/judgment/lshc/2024/113/eng@2024-11-01/source.pdf) * * * * * Report a problem __ ##### Rex V Kets'epile Moeletsi & 3 Others (CRI/T/0043/2023) [2024] LSHC 113 (1 November 2024) Copy citation * __Document detail * __Related documents Citation Rex V Kets'epile Moeletsi & 3 Others (CRI/T/0043/2023) [2024] LSHC 113 (1 November 2024) Copy Media Neutral Citation [2024] LSHC 113 Copy Hearing date 23 October 2024 Court [High Court](/judgments/LSHC/) Case number CRI/T/0043/2023 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 1 November 2024 Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **Held in Maseru** **CRI/T/0043/2023** In the matter between **REX CROWN** And **KETŠEPILE MOELETSI ACCUSED 1** **MOETI RAPEANE ACCUSED 2** **MOTLATSI SEKOTLO ACCUSED 3** **MOTLALEPULA MOKHESUOE ACCUSED 4** _Neutral Citation_ : Rex vs Ketšepile Moeletsi and 3 Others [2024] LSHC 113 CRIM (01st November 2024) CORAM : T. J. MOKOKO J DATE OF HEARING : 23/10/2024 DATE OF DELIVERY : 01/11/2024 __**SUMMARY**__ _Murder- Accused persons charged with two murders - At the close of the prosecution case- Defence applying for the discharge of the accused persons in terms of section 175 (3) of the Criminal Procedure and Evidence Act- Crown failed to establish a prima facie case against the accused persons- Accused persons acquitted._ __**ANNOTATIONS**__ __Cited cases__ _Lesotho_ 1. _Matsoabane Putsoa v Rex 1974 – 1975 LLR 201_ 2. _Rex v Matete 1977 (1) LLR 262_ 3. _Rex v Nthethe CRI/T/76/1989_ 4. _Rex v Teboho Ramokatsane 1978 (1) LLR 70_ __Statutes__ 1. _Criminal Procedure and Evidence Act, 1981_ 2. _Penal Code Act, 2010_ **JUDGMENT** **INTRODUCTION** Count 1 [1] The accused persons were charged with contravention of _section 40 (1)_ read with section 26 (1) of the Penal Code Act, 2010. In that upon or about the 19th day of September 2018, and at or near Sebapala, Pontseng Ha Mosehle, the said accused sharing a common intention or purpose to pursue an unlawful act or omission caused the death of ‘Mamorolong Morolong. Count 2 [2] The accused persons were charged with contravention of _section 40 (1) read with section 26 (1) of the Penal Code Act, 2010_. In that upon or about the 19th day of September 2018, and at or near Sebapala, Pontseng Ha Mosehle in the district of Quthing, the accused sharing a common purpose or intention to pursue an unlawful act or omission, caused the death of Liseloane Morolong. [3] The accused individuals entered pleas of not guilty to both charges. The Crown, however, rejected their pleas and proceeded to present evidence by calling upon three witnesses to testify in the case. [4] Defence admitted three statements of crown witnesses in terms of _section 273 (1) of Criminal Procedure and Evidence Act, 1981, (Act). Section 273 (1)_ of the Act provides that an accused or his representative in his presence may, in any criminal proceedings, admit any fact relevant to the issue, and the admission shall be sufficient evidence of that fact. [5] As Mohlomi Seeiso made his way to school, he walked alongside the yard of Ntate Morolong. He spotted Ntate Morolong lying on the ground, an unsettling sight that caught his attention and filled him with concern. He was covered with blood. He alerted ‘Masamuel Moeletsi about the situation and took her to the scene before heading to school. The statement was marked exhibit “A”. [6] Malefetsane Morolong stated that on September 20, 2018, between 7:00 AM and 8:00 PM, Masamuel Moeletsi alerted him to the yard of Liseloane Morolong. He found Liseloane Morolong lying face down on the ground and was in a pool of blood. He went into the house and found ‘Mamorolong lying on the floor in the sitting room, and she was in a pool of blood. In the bedroom, he found Taelo Morolong, approximately three years old, the grandson of Liseloane and ‘Mamorolong. The statement was marked Exhibit B. [7] Detective Inspector Tau stated that on the 20th of September 2018, he received a report about two murders that occurred at Sebapala. He went to the scene of the crime. Upon examination of Liseloane Morolong, he observed one huge open wound on the neck, two open wounds on the right hand, and multiple wounds at the back. In the house, he found the body of a female person. She sustained three open wounds at the back and an open wound on the arm on the right side. She was lying on the floor near the sofa. The wardrobe doors were open in the bedroom, and clothes were scattered on the floor. A pot containing meat in the kitchen had been opened, and some meat had been taken. There were fingerprints on the pot lid. He further observed fingerprints on the gate. The report was marked Exhibit C. [8] According to the post-mortem report of Liseloane Morolong, death was due to multiple stab wounds with severe blood loss. It was marked exhibit D. In addition, the post-mortem report of ‘Mamorolong Morolong showed that death was due to multiple stab wounds with severe blood loss. It was marked Exhibit E. **PW1- Detective Police Constable Moshabe**. [9] During the witness's testimony, the defence challenged the admissibility of the pointing out by A4, arguing that it was not made freely and voluntarily, as the police had assaulted A4. The court decided to conduct a trial within a trial to determine whether the pointing out could be admitted as evidence. After the trial within trial, the court ruled that the pointing out was inadmissible because it was not made freely and voluntarily due to the assaults A4 endured from the police. The detailed reasons for this ruling are outlined in the written decision from the trial within a trial. The defence further challenged the admissibility of the confession made by A3 to the Magistrate, arguing that it was not given freely and voluntarily due to the assaults and threats made by the police. After the trial within trial, the court ruled that the confession was indeed not made freely and voluntarily and, therefore, was inadmissible, as A3 had been assaulted and threatened by the police. **MAIN TRIAL** **PW1- Lempe Jane Moloi- Forensic Scientist** [10] Lempe Jane Moloi testified that he is employed by the Lesotho Mounted Police Service (LMPS) as a Senior Laboratory Technologist in the biology section. He obtained a Bachelor of Science degree from the National University of Lesotho in 1994 and a Master of Science in Forensic Science in the United Kingdom in 2013. In February 2005, he worked as a fingerprint technologist. His responsibilities include receiving exhibits from investigators, examining these exhibits, performing tests, providing fingerprint reports to the courts, and giving evidence whenever required. He received exhibits on the 29th of September 2018. He was requested to compare blood swabs from the deceased persons against the items seized from the suspects to establish the similarities and differences. He compiled his report based on the report he received from Unistel Medical laboratories. The conclusions from Unistel Medical laboratories were that a single female DNA profile obtained from the knife from suspect Moeti Rapeane and a piece of brown trousers from the same suspect, Moeti Rapeane, is identical to the female DNA profile obtained from the blood swab of the deceased ‘Mamorolong Morolong and that the mixed female/male DNA profile obtained from the brown trouser from suspect Motlalepula Mokhesuoe has major DNA profile which is identical to the female profile of the deceased ‘Mamorolong Morolong. [11] During cross-examination, the witness stated that he conducted presumptive tests to determine whether the stains on the items were blood, using specific chemicals. He reported that the test on the brown trousers returned a positive result for blood. The witness confirmed that he did not compile the report from Unistel Medical Laboratories. When it was suggested that the contents of the Unistel report were hearsay, he admitted that this was true. **PW2- Detective Police Constable Lereko Moshabe** [12] He is a member of the Lesotho Mounted Police Service. In 2018, he was stationed at the Quthing Police Station. On 24th September 2018, he, along with Police Sekopo and Kikine, took A1, A3, and A4 to Sebapala for pointing-out purposes. A1 pointed out a knife. On 25th September 2018, A4 pointed out a grey track top and a brown pair of trousers, which he then seized. Upon examining the trousers, he noticed a stain that appeared to be blood just below the right pocket. He showed the stain to A4. He completed and presented the LMPS 12 form for these items to the court. The LMPS 12 was accepted as evidence and marked as Exhibit G. [13] During cross-examination, it was suggested to the witness that he did not bring A4's attention to the alleged stain on the trousers. The witness firmly maintained that he did. Additionally, he was equally certain that A4 pointed it out freely and voluntarily. **PW3- Senior Inspector Pholoana Kikine** [14] He testified that in 2018, he was stationed at Quthing Police Station in the Criminal Investigation Department. On 24th September 2018, he, along with Police Officers Sekopo and Moshabe, took A1, A3, and A4 to Sebapala for a pointing-out exercise. A1 pointed out a knife during this process. On 25th September 2021, A4 pointed out some clothes, which PW2 subsequently seized. Afterwards, they returned to Quthing Police Station. The cross-examination of this witness did not elicit any significant information. Crown then closed its case. **APPLICATION FOR DISCHARGE OF THE ACCUSED PERSONS** [15] Adv. Thetsane KC, counsel for the two accused persons, moved an application for the discharge of the accused persons in terms of _section 175 (3) of the Criminal Procedure and Evidence Act, 1981_ , on the ground that the crown had failed to establish a prima facie case against the accused persons. He submitted that there was no evidence of the commission of the crime upon which the court might convict the accused persons. He submitted that the provisions of _section 175 (3)_ have been construed by the courts to establish firstly, whether, on the face of it, the crown established a prima facie case, secondly whether the evidence presented by the crown, if believed, will reasonably satisfy that the accused may be guilty of the crime and thirdly that evidence against the accused should not be considered in isolation, but together with the evidence tendered by the crown. He further submitted that the crown’s case was based on circumstantial evidence. Once the confession and the pointing out were ruled inadmissible, there was no evidence upon which the court might convict; therefore, the accused persons had to be discharged. He referred the court to the cases of _**Matsoabane Putsoa v Rex 1, Rex v Teboho Ramokatsane2, Rex v Thoabala3, Rex v Matete4, and Rex v Nthethe5**_**.** **CROWN’S SUBMISSIONS** [16] Advocate Mofilikoane, representing the Crown, stated that the key issues for the court to consider are whether the Crown has established a prima facie case against the accused and whether the evidence presented, if believed, would lead a reasonable person to convict. She argued that the Crown's case relied solely on circumstantial evidence. Since the court has already ruled in the trial within a trial that both the confession and the pointing out are inadmissible, the Crown cannot reasonably convince the court to consider the provisions of _Section 229 (2) of the Criminal Procedure and Evidence Act, 1981_. She argued that since the confession and the pointing out are inadmissible, the Crown concedes that it has not established a prima facie case against the accused individuals. She added that even if the Crown were to call the doctor from Unistel Medical Laboratories, it would be a waste of time, as the court has already ruled that the pointing out is inadmissible. **THE LAW** [17] _Section 175 (3) of the Criminal Procedure and Evidence Act, 1981 (Act)_ , provides that: “ _If, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the charge or any other offence of which he might be convicted thereon, the court may return a verdict of not guilty”._ [18] The issue to be determined by this court at this stage is whether the crown has established a prima facie case upon which a reasonable court might convict the accused. See _**Matsobane Putsoa ’s case**_ _(supra)._ [19] In the case of _**Rex v Teboho Mabollane (**__supra)_ , **Lehohla J** , (as he then was) quoted with approval what was said in the case of _**Rex v Ramakatsane**_ _(supra)_ where _**Cotran CJ at 73-74**_ remarked as follows: “ _Furthermore, the courts, it has been said should not at this stage embark upon a final assessment of credibility and should leave that matter in abeyance until the defence have closed their case and then weigh the two together. In Lesotho, however, our system is such that the Judge is the final arbiter on law and fact so that he is justified if he feels that the credibility of the witnesses has been irretrievably shattered in saying to himself that he is bound to acquit, no matter what the accused might say in his defence short of admitting the offence_ ”. [20] At this stage, the court is not concerned with the credibility of witnesses. The simple test is whether the Crown has established a prima facie case against the accused. [21] _In casu_ , the crown has not established a prima facie case against the accused persons. **ORDER** The court makes the following order. 1. The accused persons, Motlatsi Sekotlo and Motlalepula Mokhesuoe, are found not guilty. My Assessors Agree. __________________________ T.J. MOKOKO JUDGE **COUNSEL FOR ACCUSED :** ADV. L. THETSANE KC **CROWN COUNSEL :** ADV. L. MOFILIKOANE 1 1974 – 1975 LLR 201 at 204 2 1978 (1) LLR 70 3 1981 (2) LLR 363 4 1977 (1) LLR 262 5 CRI/T/76/1989 #### __Related documents ▲ To the top >