Moorosi Tsiane
BUSINESS mogul, Tšeliso Nthane, will learn his fate on 1 November 2024, following an appeal by Director of Public Prosecutions (DPP) Hlalefang Motinyane against his acquittal in a murder case.
The appeal challenges Justice Palesa Rantara’s 2022 decision to acquit Mr Nthane of the 2019 murder of his truck driver, Kopang Mohapi.
Mr Mohapi, who worked for Nthane Brothers, was allegedly shot after being involved in a road accident at Moteng Pass, 171 kilometers from Maseru. He was transporting construction machinery to Polihali in Mokhotlong, where Nthane Brothers had secured a M235 million road construction tender for the second phase of the Lesotho Highlands Water Project (LHWP). Mr Nthane was accused of having shot his driver in a fit of rage after the accident.
The case, prosecuted by Advocate (Adv) Motene Rafoneke, saw Mr Nthane being represented by Adv Motiea Teele KC, acquitted by Justice Rantara in 2022, citing a lack of prima facie evidence that he had shot Mohapi.
Last month, DPP Motinyane appealed the acquittal. A panel of judges—Justices Phillip Musonda, Moses Chinhengo, and Petrus Damaseb—heard the appeal yesterday.
Adv Rafoneke outlined two grounds for the appeal. Firstly, he argued that Justice Rantara had erred by refusing to allow the Crown to lead its second witness, Moeketsi Motsamai, through his police statement during testimony.
Adv Rafoneke explained that Motsamai’s testimony differed from his police statement, and he had attempted to reconcile the discrepancies by referring the witness to his original statement. However, this was objected to by Adv Teele and the objection was upheld by Justice Rantara.
“The second Crown witness was referred to his police statement to refresh his memory and clarify the facts. The prosecution sought some form of reconciliation, but the objection that this amounted to cross-examination was upheld,” said Adv Rafoneke.
Justice Damaseb questioned why Adv Rafoneke had not declared Motsamai a hostile witness. Adv Rafoneke responded that he had not been given the opportunity to do so, as the witness had not yet shown hostility at the time.
“The application (to declare the witness hostile) could only be made once the witness became hostile. Unfortunately, the court a quo (High Court) stopped me before I could make the application, and critical facts that could have influenced the decision were never presented,” Adv Rafoneke submitted.
The second ground of appeal was based on the argument that, even if there was no prima facie case for murder, the court should have considered culpable homicide. Adv Rafoneke argued that according to witnesses Motiki Mokatse and Moeketsi, a gunshot was heard, and they took cover. Upon returning, they found Mohapi injured. Mr Nthane, who had fired the shot, later transported Mohapi to the hospital. The post-mortem revealed that Mohapi was killed by a deformed bullet, which the police linked to Mr Nthane’s firearm.
During cross-examination, Mr Nthane admitted to firing a shot in the air to scare away bystanders, and he claimed the fatal injury was caused by a ricochet bullet.
“Culpable homicide remains a competent verdict, and the accused should have been called to answer for it,” Adv Rafoneke argued.
He further urged the court to allow the Crown to recall Mr Motsamai to testify.
Adv Teele KC countered that the Crown had failed to provide sufficient evidence that it was foreseeable the bullet would ricochet and cause injury.
“The deformed bullet suggests it hit a hard surface before striking the deceased. For culpable homicide, it must be shown that Nthane could have reasonably foreseen that the bullet would ricochet and cause harm,” argued Adv Teele.
Adv Teele criticised the prosecution for failing to establish critical facts, such as the location of the hard surface the bullet hit or the distance between Nthane and Mohapi.
“The Crown could have requested an inspection in loco, but it failed to do so,” he added.
Adv Teele also dismissed the argument for culpable homicide, stating that the Crown had not presented any prima facie evidence to support such a charge.
Addressing the issue of Motsamai’s testimony, Adv Teele argued that Adv Rafoneke had not sought to declare the witness hostile but rather to protect his credibility.
“Adv Rafoneke sought a postponement to research ways to protect the witness, not to declare him hostile,” Adv Teele said.
In closing, Adv Teele urged the court to dismiss the appeal.
Justice Damaseb reserved judgment to be delivered on 1 November 2024.
