The undisputed facts were that the Appellant had a love affair with Mpho, 1st State witness, which was kept secret from Mpho's other lover, Ngaka, also a State witness, who lived in Palapye. The relationship
between the Appellant and Mpho came to an abrupt end on 18th June, 2000, when the two had a fight in Mpho's house. After the fight, and Mpho's evidence on this was not challenged, the Appellant
somewhat ominously shook Mpho's gas cylinder and generator trying obviously to see if they contained any inflammable substance, before
he left. Having unsuccessfully sought, through third parties, reconciliation with Mpho, the Appellant went to Mpho's house on the
evening of 22nd June, 2000, only to find that Mpho had gone out. The only occupants of the house at the time were Kefilwe and Goitseone Malesela.
2
He went away and came back again quite late that evening. About midnight, Lesedi, a friend of the Appellant and who lived some 70
metres away from Mpho's house, heard Kefilwe who lived in the same house with Mpho, calling him for help. When he and his wife, Betina,
got to Mpho's house, he heard Kefilwe screaming "please do not burn us in the house." This was followed by an explosion
in Mpho's house which then became engulfed in flames. He tried a few times unsuccessfully to open the front door. He finally succeeded
using an axe and after the fire had been subdued by the many people who had come to the scene, he went into the house and only managed
at his first attempt, because of the overwhelming smoke in the house, to carry out only Goitseone but not Kefilwe, both of whom he
found in the bedroom. On his second attempt, he saw the Appellant coming from the kitchen towards the front door. The Appellant then
said that they "have been burnt by someone (without mentioning his name) from Palapye." Lesedi then led the Appellant who
seemed dizzy, out of the house.
After hearing the evidence of Mpho, Lesedi and that of the Appellant Chatikobo J, as he could do, considered it prudent to call Kefilwe
whose evidence would be of critical importance one way or other, See THramanaa Mokqatlenvane v State Cr A 26/1999 (unreported). Kefilwe was present in the house when the fire started and was obviously an essential witness, to give evidence. Kefilwe
had been in court whilst Mpho, Lesedi and the Appellant gave evidence, but what
3
she said was as follows: the Appellant had first come to see Mpho on the fateful night at about 8.00 pm only to find that she had
gone out. She neither knew where Mpho had gone to nor when she would be back. The Appellant must have been told this. He then left
and came back at about midnight by which time, Mpho had still not returned home. Kefilwe then heard knocking on the front door which
she had locked. When she asked who was knocking in the door, the Appellant said it was he. Kefilwe said that she then heard some
noise outside the house and when she opened the bedroom window to see what was causing the noise outside, she saw the Appellant (who
had, it should be noted, admitted that he knew that Mpho had still not come back) dragging towards the house, a container which she
had seen standing under a tree near the window. She asked the Appellant what he was doing. He did not answer. It must have been dark
inside the house; she then, though she did not see him, heard someone falling into the house. It could only have been the Appellant.
Kefilwe who was still in the bedroom, then asked the Appellant why he had jumped into the house when he could have asked her to let
him in; she then smelt petrol and before she could do anything, the fire started in the house. In cross-examination, Kefilwe admitted
that because she remained in the bedroom, she could not tell whether anybody else apart from the Appellant, had gained entry into
the sitting room. She also denied having recorded in her statement to the investigating police officer that she had refused to open
the bedroom door rather than the front door, to the Appellant. The written summary of
4
evidence of Kefilwe which was admitted without objection by the defence, was to the effect, inter alia, that Kefilwe had refused to
open the bedroom door for the Appellant who was then in the sitting room leading to the conclusion that Kefilwe had lied when she
said in her evidence that she had not opened the front door instead of the bedroom door, for the Appellant, and also implying that
the Appellant had been peacefully let into the sitting room by Kefilwe through the front door, and that the person whom Kefilwe had
heard jumping into the living room was someone else whom the Appellant alleged had, after pouring some liquid on him, set him and
the house on fire.
The written summary of evidence cannot and does not contain all the facts set out in Kefilwe's full statement to the investigating
officer. Despite the apparent conflicts between the written summary and the evidence given by Kefilwe, the learned trial Judge accepted
Kefilwe's evidence and we cannot hold that he erred in doing so.
Now what is the evidence of the Appellant? It is that he went back to the house the second time, and found Mpho had still not come
back. As he was about to sit down in the sitting room, after he had entered the house, he became aware of the fact that there was
someone else in the sitting room, and when he turned to look, that person poured some liquid into his eyes, lit it, and ran away,
leaving the Appellant burning. He had difficulty finding his way out of the house until Lesedi came to his rescue and took him outside
the house. He was taken to the fence of the house where he remained until he was taken
5
to hospital. He denied that he had jumped over the fence in an attempt to run away, as alleged in the admitted summary of the evidence
of Betina and Angelina Ngwako which was to the effect that the Appellant had, after he had been rescued from the burning house, tried
unsuccessfully to run away.
The summary of evidence of Detective Constable Rantabe and
Sergeant Philemon that a plastic container which smelt of petrol, was
recovered from the burnt house, was not challenged. But what is
also significant, is that the evidence of Kefilwe that she saw the
Appellant dragging the container towards the house and later heard a
splash of liquid inside the sitting room which gave out the smell of
petrol, was not specifically challenged in cross - examination. And
also rather unbelievably, the Appellant who is a driver and must know
what petrol smells like, deliberately avoided the issue when he stated
in his examination in chief that:
"Lefoko
when I was going to the sitting
room, I was trying to turn back, I noticed a person or somebody and when I looked he poured me with something.
Sillas: Where did he pour you?
Lefoko: In my eyes. He lit a match, he ran away. I did not see where he went.
Sillas: After he lit a match, what happened?
Lefoko: I was on fire. I was burning..."
In cross-examination, the Appellant stated:
"Khan: You decided to wait for her in the sitting
room?
Lefoko: I decided to wait for her and as I turned around and that is when something was splashed on my eyes before I could even sit
down."
The unchallenged summary of evidence of Betina that whilst she and
others were trying to put out the fire, she had seen the Appellant in
the toilet in the house, together with the evidence of Lesedi that when
he rescued the Appellant, he was coming from the kitchen, support
the proposition that if the front door was open as the Appellant had
said and not locked as stated by Kefilwe, the Appellant, though on
fire, would have got out of the house quickly through the front door
and would not have tried to find his way out through the toilet or the
kitchen. Indeed, the action of the Appellant supports the evidence of
Kefilwe that she had locked the front door which had led to the
Appellant jumping into the house through a window. And if another
person had come in through the front door, the Appellant would not
have failed to have heard him coming in. And if he had come into the
sitting room with a plastic container containing petrol whilst the
Appellant was there, the Appellant would most certainly have heard or
seen him. The Appellant's version that this person about whom he
said:
"I do not know if he was a man or woman",
7
but whom the Appellant had referred to throughout his evidence in the masculine, had mysteriously disappeared after lighting the liquid
he poured on him, was quite properly found unbelievable by the learned Judge. If the Appellant had been let into the sitting room
by Kefilwe as he claimed, he would have seen such person if he had then been in the sitting room. At no time was this even suggested
to Kefilwe during her cross examination.
Lastly, according to the admitted summary of evidence of Maggie Lesotlho, a friend of Mpho, she found, some four days after the burning
of the house, a letter in the coat of the Appellant that had been left behind there, addressed to Mpho, about "the events that
had taken place". The Appellant, according to the psychiatric report on him made by Dr. Panova, Specialist Psychiatrist, did
not go to school. This suggests that the breakup of his love affair with Mpho was a matter that affected him so deeply, that he even
got someone to write the letter for him. His intense jealousy that Mpho had finally jettisoned him for Ngaka who was at Palapye on
the evening of 22nd June, 2000, probably motivated his false accusation that Mpho's house had been burnt by someone from Palapye.
With regard to the evidence of Kefilwe, the learned Judge was aware of the fact that the summary of her evidence had been admitted
and that she was in court when Mpho, Lesedi and the Appellant gave evidence.
8
He was aware that ordinarily this would affect the weight to be given
to her evidence as:
"there would normally be the obvious danger of such a witness tailoring her evidence to suit that of the other witnesses."
But as in her case, she was the only witness to the events that she
testified to,
"The danger of her gilding the lily in order to strike a harmonious cord with the rest of the witnesses is virtually nil."
The learned Judge obviously took into consideration Kefilwe's
presence in court when the others before her gave evidence and the
need to treat Kefilwe's evidence with caution. He took into account
evidence that gave credence to that of Kefilwe such as the fact that the
front door must have been locked when Kefilwe was in bed so late at
night and that this had made the Appellant break into the house and
had also made it difficult for the Appellant to escape when upon
lighting the highly inflammable petrol, he also not surprisingly, caught
fire. He also took account of other supporting evidence to which I
have already adverted, properly analysed the evidence and established
that there was no other person in the sitting room who poured some
liquid, which the Appellant falsely pretended that he could not
identify; and that the Appellant's allegation that the house had been
set on fire by someone from Palapye, was false. These are all
circumstantial evidence that not only, lend credence to the evidence of
Kefilwe, but also establish the guilt of the Appellant beyond any
reasonable doubt, as found by the learned Judge.
9
As Tebbutt JA, as he then was, enunciated in Monty Bogosi v The State Cr A 25/1996
"It is now well -established in the Court, as it is in the courts of other Commonwealth countries, such as the United Kingdom
and South Africa, that an appeal court is very reluctant to upset the findings of fact of the trial Judge a QUO and will do so only where it is convinced that he was wrong, the trial court having had the advantage of seeing and hearing the witnesses
and observing their demeanour."
On a careful reading of the record of appeal, I am satisfied that the learned Judge, having regard to the particular circumstances
of the matter before him and his consideration of the pertinent evidence adduced before him by Mpho, Lesedi, Kefilwe and the Appellant,
gave a fair and proper consideration of the pertinent evidence before him, including that of the Appellant, before concluding that
the Appellant was guilty of the offences charged. The Appellant's grounds of this Appeal are without merit.
In the result the Appellant's appeal against conviction is dismissed.
It is so ordered.
10
DELIVERED IN OPEN COURT AT LOBATSE ON THE
DAY OF
JANUARY 2003
I agree,
I agree,
A. M. AKIWUMI JUDGE OF APPEAL
1/^rZJ^
•••••Tirfii|i>4fT??????iiitiii
N. W. ZIETSMAN JUDGE OF APPEAL
7
C. PLEWMAN JUDGE OF APPEAL
H
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