Advocate Makhetha Motšoari has urged the court to acquit his client, France Tšepo ‘Tsoo’ Tsebe, due to contradicting evidence.
The lawyer made this submission before Magistrate Polo Banyane-Pitso on Thursday, arguing the prosecution had failed to prove the four charges leveled against Tsebe.
The 31-year-old South African taxi-operator faces conspiracy to commit robbery, unlawful possession of a firearm and two attempted murder charges he allegedly committed on 2 December 2013 at Domiciliary Clinic in Moshoeshoe II.
He denies the charges save for that of illegally possessing a firearm.
Advocate Motšoari pleaded with the court: “There are several contradictions which are material aspects of the case.
“Three witnesses are saying they saw the accused shooting at the Lesotho Defence Force (LDF) vehicle with an AK47 rifle, while two claim he had a small 9mm firearm.”
The witnesses in question include Manti Ntsui, Lance Corporal Tsoeunyane, Lance Corporal Leohla, Captain Rajane and ‘Masello Mabahlakoana.
“They are all saying we saw him, meaning the witnesses are not in agreement whether the accused was using a 9mm or AK47 firearm.
“Evidence from the ballistics report provides that the accused never fired any shot so he cannot be found guilty of attempted murder as it is clear the firearm found in his possession was never used.
“This implies we have three stories from the side of the Crown. Under these circumstances, he is entitled to be acquitted,” Advocate Motšoari submitted.
The court, he added, should instead consider the consistency of the accused’s testimony.
“The accused’s testimony, from the beginning to the end, was never contradictory,” Advocate Motšoari said.
“He was not challenged under cross-examination. That, in itself, means his story must be considered.”
He further urged the court not to rely on the evidence of one witness only but also conceded this was possible.
“On charges of conspiracy, only Manti Ntsui gave evidence but it was never corroborated by anybody.
“We therefore, plead that the accused cannot be found guilty of any offense on the basis of the totality of the evidence we have submitted before this court.”
However, Mr Sekoati Hlophe, who is prosecuting the case, submitted the state had provided enough evidence to secure a conviction.
“We have looked at the legality, unlawfulness and intention as essential elements in the case and ask the court to convict the accused.
“We see intention. The accused and others wanted to do this act but for some reason, failed to accomplish their mission.”
During cross-examination, Tsebe had submitted he was in Lesotho to sell a Toyota Quantum—only to find the vehicle he was travelling in being followed by two white cars whose occupants then started shooting at it.
The court further heard the LDF was acting on a tip-off of an imminent robbery at U-Save Pitso Ground Maseru.
Tsebe was the only suspect arrested as three of his alleged accomplices were shot and killed by the LDF on the spot. Two other suspects fled the country and are believed to be somewhere in South Africa.
Tsebe was denied bail when he first appeared in court on 18 December 2013.
On Thursday, Magistrate Banyane-Pitso postponed judgment to 30 November 2015.