…Tšukulu cleared of killing but convicted over cover-up
… as Matona, Taasoane walk free
Moorosi Tsiane
SENIOR Inspector Mathibeli Mofolo has been convicted of the gruesome murder of Police Constable Mokalekale Khetheng, bringing a dramatic end to one of Lesotho’s longest-running and most controversial police murder trials.
High Court Judge Charles Hungwe on Monday found that Snr Insp Mofolo had unlawfully and intentionally caused PC Khetheng’s death after taking him into police custody on 26 March 2016.
But his three co-accused — former Hlotse Police Station commander Senior Superintendent Thabo Tšukulu, Inspector Mabitle Matona and Sub-Inspector Haleokoe Taasoane — were acquitted of murder.
SSP Tšukulu nevertheless did not walk free. Justice Hungwe convicted him of being an accessory after the fact to murder and other offences arising from what the court found was an elaborate attempt to cover up PC Khetheng’s killing.
Inspector Matona and Sub-Inspector Taasoane were acquitted and immediately released from custody.
The judgment ends nearly a decade of legal battles over the death of PC Khetheng, who disappeared after being taken into police custody and whose body was discovered the following day in a remote gorge at Ha Mokhalinyane.
In a damning judgment, Justice Hungwe said the evidence established that PC Khetheng had been taken alive into police custody, deliberately kept out of official custody records and found dead the following day with signs of restraint and violence.
“A healthy man is taken alive into the exclusive custody of a police officer, deliberately concealed from the ordinary custody record, and is found dead the following day in a remote gorge some two hours away with marks of restraint and violence to his neck and wrist, and his fate is thereafter systematically covered up,” Justice Hungwe said.
“That the deceased met an unlawful death is, in my judgment, the only reasonable inference from the proved facts.”
However, the judge stressed that proving PC Khetheng had been unlawfully killed was different from proving who had participated in his murder.
“There is no admissible direct evidence of the killing itself,” Justice Hungwe said.
The precise cause, place and time of death — and everyone who may have been present — could therefore not be established through direct evidence.
Case against Mofolo ‘overwhelming’
Justice Hungwe nevertheless found the circumstantial case against Snr Insp Mofolo overwhelming.
The court found that he had taken exclusive custody of PC Khetheng, deliberately circumvented detention records, borrowed handcuffs and received lattice gloves when he took custody of the deceased.
He had failed to satisfactorily explain those circumstances.
The judge also relied on Snr Insp Mofolo’s subsequent false and evasive accounts, alleged admissions that PC Khetheng had been killed and his body left at Ha Mokhalinyane, and attempts to suppress evidence.
“The case against [Snr Insp Mofolo] does not depend upon the excluded interrogation material,” Justice Hungwe said.
“It rests upon his taking of exclusive custody of the living deceased, his deliberate circumvention of the detention records, his borrowing of the handcuffs, the receipt of the lattice gloves at the moment of taking custody … his false and evasive accounts thereafter, his admissions that they had killed the deceased and had left his body at Ha Mokhalinyane — the very locality where the body was in fact found — and his elaborate steps to suppress the truth.”
Justice Hungwe found that the evidence excluded any reasonable inference other than that Snr Insp Mofolo had unlawfully caused PC Khetheng’s death.
He also rejected arguments that the absence of a definitive medical cause of death made a murder conviction impossible.
“Murder does not require proof of the precise mechanism of death, where the effect of an unlawful and intentional killing is otherwise established beyond reasonable doubt,” he said.
Snr Insp Mofolo was accordingly convicted of murder.
Tšukulu escapes murder conviction
The court reached a different conclusion regarding SSP Tšukulu.
Justice Hungwe found insufficient evidence to establish beyond reasonable doubt that the former Hlotse police commander had participated in a plan to kill PC Khetheng or knew beforehand that he would be killed.
The judge drew a critical distinction between foreknowledge of the murder and knowledge subsequently acquired and used to conceal it.
“The distinction between foreknowledge and subsequent knowledge is the distinction between the main count and its alternative, and I have kept it in view throughout,” Justice Hungwe said.
“I cannot exclude the reasonable possibility that Accused 1 did not participate and had no prior agreement to the killing, and therefore find Accused 1 not guilty of murder on count 1.”
But Justice Hungwe found SSP Tšukulu had subsequently become involved in concealing PC Khetheng’s fate.
The court found he had instructed that the March 2016 occurrence books and file register be removed from the records office and participated in constructing a false account that PC Khetheng had never been arrested but had voluntarily left the police station.
He had also taken steps to procure evidence supporting that version, the court found.
“A commander who believes that a man simply walked away from his station has no reason to remove the record of his custody,” Justice Hungwe said.
“Their removal is explicable only on the footing that they would disclose something he needed to suppress.”
The judge found that by the time of proceedings in June 2016, SSP Tšukulu knew PC Khetheng had been unlawfully killed while in Snr Insp Mofolo’s custody.
“I am satisfied that the only reasonable inference offered on the proved facts is that Accused 1 knew, by the time he embarked upon the June 2016 exercise, that the deceased had been unlawfully killed while in the custody of Accused 2,” he said.
SSP Tšukulu was therefore convicted of being an accessory after the fact to murder, along with offences arising from the fabrication and promotion of the false account.
Matona, Taasoane walk free
Inspector Matona and Sub-Inspector Taasoane were cleared altogether after Justice Hungwe found insufficient evidence linking them to PC Khetheng’s killing.
“The admissible evidence does not establish their participation,” he ruled.
The judge also rejected claims that the two had attended a meeting at which an investigation into PC Khetheng’s disappearance was allegedly ordered.
“The evidence is that Inspector Mabitle Matona and Sub-Inspector Haleokoe Taasoane did not attend Criminal Investigation Division meetings, and I make no finding of attendance against either,” Justice Hungwe said.
Both were acquitted of murder and released.
How Khetheng disappeared
The court found that PC Khetheng was arrested on 26 March 2016, handed over to Snr Insp Mofolo and never seen alive again.
His body was subsequently discovered at Ha Mokhalinyane.
DNA analysis and identification by his family confirmed the remains were those of PC Khetheng, while clothing recovered with the body corresponded with descriptions of what he had been wearing shortly before his disappearance.
Justice Hungwe dismissed discrepancies concerning the numbering of the grave and coffin as record-keeping problems that did not cast reasonable doubt on the identity of the deceased.
The precise mechanism of death could not be medically established because the body was already badly decomposed when the post-mortem was conducted.
However, marks around the neck and the position in which the body was found were consistent with strangulation and drowning, the court heard.
Justice Hungwe said the prosecution case ultimately depended upon circumstantial evidence to bridge the crucial period between PC Khetheng being handed to police and his death.
“The critical gap is between the handover and the death,” he said.
“There is no direct evidence of any act of violence or of the act causing death, of the place or the time of death, or of who was present. The material capable of bridging that gap is inferential, and its reach differs from accused to accused.”
That distinction proved decisive: Snr Insp Mofolo was convicted of murder; SSP Tšukulu escaped the murder conviction but was convicted for his role in the subsequent cover-up; while Inspector Matona and Sub-Inspector Taasoane walked free.
