Rex Poto & 5 Others (CRI/T/0099/2022) [2024] LSHC 231 (29 April 2024)

SA 13 (A) (30 September 1988).

4. Thebus and Another v S (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505

(CC); 2003 (10) BCLR 1100 (CC) (28 August 2003).

5. Maboka and Another v R 2000-2004 LAC 1 at p18.
6. S v Goliath 1972 (3) SA 1 (A).
7. R v Hasan [2005] UKHL 22; [2005] 2 AC 467).
8. R v Brandford [2017] 2 All ER 43; - [2016].
9. Rex V Moqethi Molapo CRI/T/1/95.
10. R v Rankali and Others (CRI/T 71 of 89) [1989] LSCA 130 (20 Nov

1989).

11.    R v Tsukulu Makaba 1977 LLB at page 282.

12.     Rex v Moseli 197 LLR 225.

13.        Rex v Motsoane (CRI/T/0014/2018) [2022] LSHC 159 (12 December

          2022).

 

STATUTES

1. Criminal Procedure and Evidence Act,1981.
2. The Penal Code Act No.6 of 2010.

 

 

 

ARTICLES

1. 1. 1. 1. Stanley, Yeo. Compulsion and Necessity in African Criminal Law.

Journal of African Law Vol.53, No1(2009), pp. 90-110.Published by:

School of Oriental and African Studies.

1. 1. 1. 2. Goosen, Samantha. Duress by indirect circumstances in English

South African Law: a comparison EWCA Crim 1794, Obiter (online).2020, vol41, n.4 (cited 2024-04-14).

 

BOOKS

 

1.      Kemp Criminal Law in South Africa 2 ed (Oxford University Press),

Cape town.

2. S.S Terreblance The guide to sentencing in South Africa. Butterworths

1999 3^rd edition.

 

 

 

 

JUDGMENT

 

HLAELE J

[1] INTRODUCTION

1.1 The accused was charged as follows:

COUNT 1

THAT:

JAKOBO MOFOLO a Mosotho male adult of Headman Thabang Lehoko under Chief Mabela Maama at Roma Ha Kholoko in Maseru.

 

 

OELE POTO a Mosotho male adult of Headman Thabang Lehoko under Chief Mabela Maama at Roma Ha Kholoko in Maseru.

 

PHAKISO LEHOHO a Mosotho male adult of Headman Thabang Lehoko under Chief Mabela Maama at Roma Ha Kholoko in Maseru.

 

 

(HEREINAFTER CALLED THE ACCUSED)

ARE GUILY OF CONTRAVENING SECTION 40 (1) READ WITH SECTION 26 (1) OF THE PENAL CODE ACT, 2010.

In that upon or about the 5^th day of March 2020 and at or near Roma Ha Kholoko in the district of Maseru, the said accused sharing a common intention or purpose to pursue an unlawful purpose together and in the pursuit of such purpose did perform an unlawful act or omission with the intention of causing the death of ‘Malekhooa Maseka, such death resulting from their act or omission, the said accused did thereby contravene the provision of the code as aforesaid.

COUNT 2

THAT:

JAKOBO MOFOLO a Mosotho male adult of Headman Thabang Lehoko under Chief Mabela Maama at Roma Ha Kholoko in Maseru.

 

 

OELE POTO a Mosotho male adult of Headman Thabang Lehoko under Chief Mabela Maama at Roma Ha Kholoko in Maseru.

 

PHAKISO LEHOHO a Mosotho male adult of Headman Thabang Lehoko under Chief Mabela Maama at Roma Ha Kholoko in Maseru.

 

(HEREINAFTER CALLED THE ACCUSED)

ARE GUILY OF CONTRAVENING SECTION 40 (1) READ WITH SECTION 26 (1) OF THE PENAL CODE ACT, 2010.

In that upon or about the 5^th day of March, 2020 and at or near Roma Ha Kholoko in the district of Maseru, the said accused sharing a common intention or purpose to pursue an unlawful purpose together and in the pursuit of such purpose did perform an unlawful act or omission with the intention of causing the death of ‘Matlhokomelo Poto, such death resulting from their act or omission, the said accused did thereby contravene the provision of the code as aforesaid.

 

COUNT 3

THAT:

JAKOBO MOFOLO a Mosotho male adult of Headman Thabang Lehoko under Chief Mabela Maama at Roma Ha Kholoko in Maseru.

 

 

OELE POTO a Mosotho male adult of Headman Thabang Lehoko under Chief Mabela Maama at Roma Ha Kholoko in Maseru.

 

PHAKISO LEHOHO a Mosotho male adult of Headman Thabang Lehoko under Chief Mabela Maama at Roma Ha Kholoko in Maseru.

 

(HEREINAFTER CALLED THE ACCUSED)

ARE GUILTY OF CONTRAVENING SECTION 40 (1) READ WITH SECTION 26 (1) OF THE PENAL CODE ACT, 2010.

(HEREINAFTER CALLED THE ACCUSED)

IS GUILTY OF CONTRAVENING SECTION 40 (1) READ WITH SECTION 26 (1) OF THE PENAL CODE ACT, 2010

 

In that upon or about the 5^th day of March, 2020 and at or near Roma Ha Kholoko in the district of Maseru, the said accused sharing a common intention or purpose to pursue an unlawful purpose together and in the pursuit of such purpose did perform an unlawful act or omission with the intention of causing the death of ‘Mampolokeng Masasa, such death resulting from their act or omission, the said accused did thereby contravene the provision of the code as aforesaid.

At the commencement of the trial, the prosecution applied for separation of trials because the other accused had gone (AWOL), vis Rethabile Poto accused 1. Morena Poto, accused 2. Hoaba Poto was deceased.  In order not to delay the proceedings, the application for separation of trails was granted.

The remaining accused were Jakobo Poto, Oele Poto, and Pakiso Lehoko.

 

[2] THE CROWN’S CASE

2.1 In every criminal trial, the crown bears the onus of proving the guilt of the accused beyond reasonable doubt.

The evidence that was led by the crown can be captured as follows:

2.2 PW1 was Thabang Lehoko who was the headman of Ha- kholoko.

2.2.1 His evidence was that on the 5^th of March 2020 between the hours of 23:00 pm and 00:00 Am, he was called by one Pakiso Maseka who is a neighbour of the three accused. He was calling him to see the evil that had happened at ‘Mampolokeng Masasa’s place. On his arrival at ’Mampolokeng’s place, he was directed to enter the house whereby he found ‘Mampolokeng lying supine on the bed with her legs spread apart and naked. She was also covered with blood on her thighs and stomach.  His evidence is also that someone was sent to Malekhooa Maseka’s place to call her but he came back reporting that nobody answered. Then the witness himself went and knocked, however, nobody answered. He then kicked the door and it got opened. Upon entering the house he found ‘Malekhooa on the bed covered with a blanket. He called out her name and she did not respond. Upon closer look, he saw blood on her. He then went back to ‘Mampolokeng’s place to report that ‘Malekhooa is also dead.

2.2.2 Thereafter the witness went to a shop to buy airtime so that he could call the police. As he was passing by ‘Matlhokomelo Poto’s place he was informed by the grandson that he was also murdered. He then went to her place and found her lying down with a wound on the chest. Still breathing then, though at the brink of death.

2.2.3 The witness called the police and they arrived around 06:00 am. The corpses were then taken to the mortuary by the police.

2.2.4 The following morning this witness was called by the Roma police and instructed to inform A3, A4 and A6 to report to the police, which he did. 

2.2.5 Around 08:00 am the following day, the witness got another call from Roma Police. On the phone he was directed to talk to A4 who asked him to proceed to his father’s house to inform him to look for a sword under a bed. A4 further requested the witness to tell one Thabelang Mokokomane to hand him a knife which he had left with him at night at the cattle post.

2.2.6 The witness was once again called by the police and given A3 to talk to. A3 requested him to proceed to one ‘Makhotso’s place to find the spear hidden inside the flower shrubs. and among her flowers he would find a spear.  The spear, sword and knife were found and kept at this witness’s place.

2.2.7 After 2 days A6’s sister-in-law ‘Marelebohile Lehoko arrived at the witness’s place to hand him a sickle, a spear and a knife which she informed him belonged to A6. Later that day, the police arrived with all accused persons except A6. They were in a police van.   

2.2.8 The weapons were then handed to the police. Each of the accused   were told to pick up their weapons. A4 picked up a sword, but he did not pick up the knife that he had instructed the witness to get from Thabelang Mokokomane. Upon being asked why he did not pick up his knife, he said he did not use that knife that knife and that was A5 who had used it. A3 also picked his spear.

2.2.9 In court the exhibits were handed to the witness to identify. He identified a sword which had a pointed end with a black handle. He testified that it was the one that was picked up by A4.

2.2.10 A spear which was made of an iron rod, had a sharp end and a handle made of a tape and soft cloth. It was picked by A3. The witness also identified the weapons which were brought to him by Marelebohile Lehoko who had told him they belonged to A6. Those were a sickle, a spear and a knife. The exhibits were collectively marked ID2.

2.2.11 During cross-examination, it was put to this witness that the accused never admitted to having used the weapons they picked up in front of the police. That they only picked those up because they were told to pick weapons they own. The witness denied this and responded that A3 and A4 together with the other accused persons said they used those weapons in the killings of the deceased. I will engage this evidence later in the judgement.

 

2.3 PW2 was Ntlhaba Bochabela.

2.3.1 He testified that on that day around 13:00 pm he was in the forest fetching wood. He received a call from A1 who requested that they should have a conversation when he (A1) arrived from Maseru. At that time he was on his way home. In the evening around 20:00 pm, A1 called the witness to his house. Upon arrival at A1’s place he found him in the company of A4, A3 and A5. A1 informed him that on that day, they were going to kill ‘Malekhooa Maseka, Mampolokeng Masasa and ‘Matlhokomelo Poto, as they were the people who killed his uncle.

2.3.2 They all agreed to participate in the killings. The weapons were already on the floor in front of them while they were discussing this.

2.3.3 Whilst the discussion was ongoing, A6 arrived. Upon his arrival, he asked them what they were still waiting for indicating that they should go on with the planned mission. He arrived carrying a spear, a knife and a sickle.

2.3.4 The witness then informed others that he was going to his home to fetch his weapons. When he was on his way home, he met A3 Jakobo Mofolo. He informed him that he was not going to be part of the mission to kill the three (3) ladies. He told him his intention was to go home and sleep.

2.3.5 Upon arrival at his own home, he told his wife all that had transpired at A1’s house. Later, A1 did arrive. They did not respond to his knock.

2.3.6 This witness’s cross examination centered around him misleading the court. To this he responded by indicating that his version was the truth.

 

2.4 PW3 was Sebaka Poto

2.4.1 He testified that, one Tlhokomelo Poto woke him up and informed him that ‘Matlhokomelo Poto had been stabbed with spears. He went to ‘Matlhokomelo place. Indeed, he found ‘Matlhokomelo lying down in the centre of the house with one stab wound. She was not yet dead by then.

2.4.2 Upon the alarm being raised about ‘Malekhooa, he proceeded to her home and found her demised on her bed.

2.4.3 He also proceeded to ‘Mampolokeng’s house and found her demised as well.

2.4.4 The following day A3, A4, A6 and A5 were called to report to Roma police. A2, who is still at large, is this witness’s son.

2.4.5 Upon receiving the message that the police requested his son to report himself, the witness went with him there. His evidence was further that, his son told him that he and other accused did plan the murders. However, his son did not personally participate in the killings.  he was a guard throughout the incident. Also, he had informed him that he was in the company of A1, A3, A4, A5 and A6 when they set out to kill the women.

2.4.6 On cross-examination it was put to this witness that the person who waited on guard and never participated in the killings was A3 and not his son.  His response was that he believed what he was told by his son.

2.5 PW4 was NO.9773 DSI Setlai who was one of the investigating officers in this case. He narrated that on the 6^th March 2020 they received a report about three elderly women who had been killed at Ha-Kholoko.  He proceeded there with Police Constable Khesa and Police Constable Lenka. Upon their arrival they indeed found the corpses of the three (3) elderly women who had been killed. They examined the corpses and conveyed them to the mortuary. The following day A1, A2, A3, A4 and A5 were called to report to the police station and they did. They were at this stage the suspects.

2.5.1 Whilst at the police station, A3 and A4 called PW1. The call was to give him instruction of where the weapons were located. PW1 followed their instructions and indeed located the weapons. They took them to PW1’s place and were kept there. The following day he and other police officers went back to Ha-Kholoko with the five (5) accused. Upon their arrival at PW1’s place, the weapons were handed to them. A3, A4 and other accused who were with them were directed to pick up from the ground, the weapons which they used in the killings. A3 picked up a spear, while A4 picked up a sword. The other three accused also picked their weapons. They returned to the police station with the accused persons. They found A6 already waiting at the police station.

2.6 PW5 was Reitumetse Makasane, the granddaughter of the deceased ‘Matlhokomelo Poto. She told the court that, she heard a bang at the door of her home. As she and her younger sister heard the banging at the door, they covered themselves with blankets (they were in bed sleeping). The other people who were present in the house with them were her father and her grand-mother ‘Matlhokomelo.

2.6.1 After the bang, she heard her grand-mother crying out to her father saying “Tlhokomelo I am dying”. She later learned that her grandmother was stabbed with spears. During this fracas, her father went outside. She also went out. She went to A3’s home to wake him up and inform him of what transpired at her home.

2.6.2 A3 responded that he was afraid to go to Matlhokomelo’s house. From A3’s house she proceeded to A4’s house and reported same. Afterwards she went back to A3’s house and proceeded with him to her home. This was the end of the crown’s case.

 

[3] DEFENCE CASE

3.1 The defence began its case by calling;

DW1 – Jakobo Mofolo who is A3.

He indicated that, A1 came and told him to meet at his place in the evening. A1 suggested to him that he (A3) could observe what was happening in the village. The suggestion being put by A1 to A3 was that A3’s parents died an unexplainable sudden death. He also suggested that his own uncle had just died a sudden and unexplainable death. A1 pointed the three deceased in the charge sheet as witches who were responsible for these deaths. A1 then invited this accused to attend a meeting at his house where they would discuss the fate of these women.

3.1.2 In the evening, he went to A1’s place. Thereat, he found A1 and A5. There were also children who were there to buy fat-cakes.  A1 had a shop within his homestead.

3.1.3 Later on A4, A2 and PW2 arrived.

3.1.4 Around 21:00 pm when all the children had left, A1 disclosed the purpose of the meeting. He told them that he wanted ‘Matlhokomelo, ‘Malekhooa and ‘Mampolokeng to be killed. He proceeded to tell them that as long as those three elderly women were alive all the people in their village were going to die like his uncle who had just been killed by them. A1 proceeded to tell A3 that he knows that his parents had just died because of those women.

3.1.5 This witness then testified that he was convinced that his parents, especially his mother, was killed by these three (3) women. He alleged that his mother died whilst in good health. He also stated that he believed these women were witches as he has a supernatural God given gift of things being revealed to him. He told the court that ‘Matlhokomelo and ‘Mampolokeng were shown in his dreams with a prediction that they were going to kill him as he was full of himself. His evidence was further that, before his mother died, she had told him that if she did not die, he (A3) was the one who would die. She also told him that the two women, ‘Matlhokomelo and ‘Mampolokeng were strangling her at night in her dreams. Thus, he believed that they were the ones who killed his mother. He therefore participated in the incidents that led to the killings of those women since he was fearing for his life.

3.1.6 He told the court that he was only present when ‘Mampolokeng was killed although he did not participate in the killing. His testimony was that all he did was to watch while A1 and A5 were killing her. He testified that he was also not present when the other two women were killed by A1 and A5 as he was waiting on the way. However, ‘Malekhooa was the one who was killed first.

3.1.7 On the issue of having called PW1 in relation to the weapons used in the killings, his version was that he did talk to PW1 on the phone about where to find a spear. He was quick to add that he however did not use the spear as he was not carrying a spear on that day. He reasoned that he picked up the spear when he was directed to do so at the chief’s place due to the pressure exerted on him by A1 who kept on telling the crowd that the spear was not his (A1’s).

3.1.8 Under cross examination this witness was insistent that it was A1 and A5 who killed all the deceased and not himself. He admitted however that he was part of those who planned the killings. It should be noted that A1 and A2 have since absconded while A5 is now deceased. It seemed a bit opportune and convenient for the witness to point all wrong doing in their direction.

3.1.9 Effectively, according to this witness, the perpetrators of the crime were A1, A2 and A5. The 2 accused in the dock were mere spectators.

3.2 DW2 was Oele Poto (A4).

3.2.1 His evidence was that on that day, he went to his brother A1’s shop with the intention of buying fat cakes. He found A1 in the company of A2, A3, PW2, and A5. A1 then told him that they were all there to discuss the issue of killing the three women. That they were the ones who killed his uncle and father. In their discussion, A1 told him that the people who were in that meeting were the ones who were going to kill those elderly women.  His evidence was that he refused to participate in the planned killing of the three women. However, his brother, who was a breadwinner of soughts, threatened to stop assisting him and the family financially. Faced with this threat, he therefore agreed to participate in the plan to kill the women.

3.2.2 Later during the meeting, A6 later arrived carrying a spear, a sickle and a knife. The plan was then finalised. Before they could all proceed to the killings, he (A4) went to his house to fetch a sword and a knife. He lent the knife to A5. All of them except PW2 went and started their mission at ‘Malekhooa’s place.

3.2.3 When they arrived at ‘Malekhooa’s house, A5 kicked the door and A6 opened the window. He (A4) lit his cell phone and remained at the door, providing light for those who were to go inside the house. A5 and A6 entered the house. When asked what the rest were doing at this time, he responded that A1, A2 and A3 remained outside guarding people who could come and fail the mission.

3.2.4 After killing Malekhooa, they proceeded to ‘Mampolokeng’s house.

3.2.5 At Mampolokeng’s house A5 kicked the door and entered the house together with A3 and A2. His evidence was further that on their way to ‘Matlhokomelo’s house he reported to others that he wanted to answer a call of nature, so he stayed behind. After attending to the call of native, he proceeded to ‘Mathlokomelo’s house.

3.2.6 However, he ended up not reaching ‘Matlhokomelo’s house because he was approaching her house, he heard her son Tlhokomelo shouting. It was as if he was fighting. He went away and met A5 who gave him back his knife. He then proceeded to the kraal and hid the knife there. His evidence was that the sword was with him the whole time, but he never used it.

3.3 DW3 was Dr Tun Hwe, a medical doctor at Mohlomi Hospital. His evidence was that he was directed by the court to assess A6. In his assessment he discovered that A6 has a history of using marijuana since he was nine (9) years old.

3.3.1 It was also during the assessment that A6 told him that he was asked by his brother-in-law to kill the three (3) women because they were witches. He promised to pay him fifteen thousand (M15,000.00). His assessment led to the conclusion that A6 has sub nominal intellectual capability. He was quick to add that this is not a case of insanity as this patient (A6) could differentiate between right and wrong.

3.3.2 It was the evidence of this doctor that A6 could stand trial but with the assistance of an intermediary. Not because he could not understand the proceedings per se, but they could sometimes take a turn to complexity, thus assistance would be required.  He completely denied, even under cross examination, that A6 could be categorised as medically or legally insane.

3.3.3 A6’s intellectual disability, he testified, ranges from mild to moderate as he can still differentiate between right and wrong. This displayed itself in mannerisms such as be easily influenced.

3.3.4 Under cross examination he testified that the fact that A6 expressed regret in killing the women meant he could appreciate the wrongfulness of his acts on that day. That the expression of regret is indicative of the appreciation of the wrongfulness of his act. Further that A6 committed the crime due to the incentive of being paid money.

3.4 DW4 was Pakiso Lehoko (A6).

His evidence was that he was approached by A1, who is his brother-in-law. He wanted him to assist in killing three (3) women. A1 reasoned that these women were the ones who had killed his uncle. He initially refused, however, A1 promised to give him M20,000.00.  As a result, he agreed to be part of the plan.

3.4.1 He also agreed because he and A1’s uncle had planned to establish an initiation school.  His sudden death had angered him.

3.4.2 His evidence was further that they began their mission of killing at ‘Malekhooa’s house whereat A5 kicked the door. Then he, A5 and A1 entered the house. He was not specific about what he did once he had entered the house. He specifically mentioned that A3 was not present at this house. He therefore corroborated him in this respect.

3.4.3 His evidence stated that, after entering the house, A1 in a short space of time told them that he was done.  They all left.  He did not tell the court what they had done inside the house.

3.4.4 From there, they went to ‘Mampolokeng’s house. On the way he remained behind at ‘Malekhooa’s house. He therefore did not proceed with the others to ‘Mampolokeng’s house but A3 had gone with others.

3.4.5 He, together with A1, A2 and A5 then went to ‘Matlhokomelo’s house. Thereat, A5 kicked the door and entered the house. He (A6) then heard ‘Matlhokomelo crying. She was also trying to exit the door. He (A6) barred her exit by blocking the door. However, when she raised alarm, they fled the house.

3.4.6 It was also part of his evidence that the sickle, spear and knife which had been exhibited belong to him.

3.4.7 On cross-examination he was asked whether he considers himself mentally challenged. His response was that according to his knowledge he is just forgetful but not mentally challenged. However, he later on responded that he is mentally challenged.

3.4.8 Cross-examination revealed that he was part of the meeting where the murders were planned. That at that meeting he was carrying a sickle, spear and knife.

3.4.9 When asked by adv Phooko, whether the doctor was telling the truth when testifying that during the commission the murders he could differentiate between what is right and wrong, the witness testified that the doctor was correct. He also admitted having entered Malekhooa’s house through the window. Also having barred Malekhooa from fleeing the attacks.

 

[4] HAS THE CROWN MADE OUT A CASE AGAINST THE ACCUSED?

4.1 I will answer this question by probing the evidence tendered and pitying such against the principles of criminal law. I will discuss each accused individually.

4.1.2 OELE POTO

The prosecution case against this accused was that:

This accused was invited to be part of a meeting where in a conspiracy to kill the deceased in the charge sheet was hatched. The convener of this meeting was the erstwhile accused 1 Rethabile Poto who seemed to be the main character in the commission of the crime. This, the crown said, established conspiracy, a hatched plan and therefore the foundations of common purpose.

4.1.3 The evidence of PW1 who was the headman of the area where the crime was committed was to the effect that after he had responded to the alarm raised of 3 elderly women being murdered, the accused and co-accused were arrested. Crucial to his evidence and pointing towards the role of the accused in the commission of the crime was his evidence that a day after the arrest of accused 1, around 5pm he received a call from the Roma Police Station, the police were requesting that this accused together with others should report to the police station. The evidence was also crucial in confirming the deaths of the 3 deceased in the charge sheet.

4.1.4 On the Saturday following their reporting to the police station, PW1 testified that he received a call from PW4 who asked him to go to his grand-father’s place to look for a sword under the bed in the house. He also requested that the headman should one meet with one Thabelang who was supposed to hand over a knife to the headman. Indeed, these weapons were found according to the directives and directions of accused 4.

4.1.5 Days later, the police who were investigating the crime returned to the village ferrying all the accused in a van. Upon their arrival the accused were asked to identify the weapon which the chief had earlier collected through his communication with the accused.  There was a debate, by the defence whether the request by the police was whether they were asked to identify the weapons on it or whether they were asked to identify the weapons they committed the crime with. More will be said about this debate.

4.1.6 According to PW1 Accused 4 picked only a sword. The police then asked whether this was his only weapon, to which he responded in the affirmative. PW1 then asked him why he had said he should collect the knife during their telephonic conversation earlier. To this A4’s response was that it was A5 who used the knife during the commission of the ‘job’.  He meant the commission of the crime they stood accused of.

4.1.7 The cross-examination of this to focused on whether he only picked the weapons he used in committing the crime. Or whether he picked those that belonged to him. To this he responded by saying, he picked the one’s he used in the crime, not those that he owns.

4.1.8 Advocate Fihlo tried to drive the point that this accused never admitted that the weapons he identified was to prove that he used them to commit the crime.

4.1.9 Whilst I find that it is possible that the police did not specifically ask a direct question or request that each accused should pick the weapon they used in the commission of the crime, I find it unlikely that an investigating officer would ask a suspect under his custody to pick a weapon he owns when the whole purpose of the exercise was to identify the murder weapon. This is compounded by the fact that this accused did not take the knife since, according to his own evidence, he did not use it in the commission of the crime. If the purpose was to pick the weapons they owned, surely this accused would have picked up the knife as well, because through his own admission it belonged to him.

4.1.10 I found PW1 an honest witness who stood by his evidence. He was unshaken by cross examination and stood his ground. I did not see him as a person who had an axe to grind against the accused. The crown had thus connected the crime to the exhibits or weapons which were used in the commission of the crime.  

4.2 PW2 Ntlhaba Bochabela’s evidence put this accused as part of the conspiracy. Since he (PW2) was part of the meeting which orchestrated the murders. This witness saw accused 4 during the planning stage. It was at this meeting that A1 was specific that the mission was to kill the 3 deceased in the charge sheet. Those present, including A4 understood what the mission was. This witness testified that he pretended he was going home to get weapons but he never returned since he did not want to commit the crimes that formed part of the conspiracy discussed in A1’s house.

4.2.1 The cross examination attempted to paint this witness as one who fabricated the conspiracy. The questions posed to this witness were indirectly suggesting that the conspiracy was a figment of this witness’s imagination. Even if cross-examination had succeeded in bringing this witness to admit that the conspiracy meeting never occurred, which it didn’t, later in their evidence the accused themselves confirmed/ corroborated the existence of this meeting.  This witness was a credible witness who answered question in the most simple and focused manner. If asked why he never reported the meeting to the police he would honestly reply that he was scared. He even showed the defence counsel that it was actually the accused themselves who had exonerated him from the commission of the crime. He had no bone to pick with the accused. The crown had confirmed the participants of the conspiracy and the weapons they held at the time of the plan.

4.2.2 PW3 was Sebaka Poto, the father of A2. His first interaction with the crime was being awoken by the son of deceased in count 2. Then an alarm also sent him to the home of deceased in count 1. He corroborated PW1 that A4 and others were arrested a day after the commission of the crime. He took A2 to the police because he is his son. At the police station A4 admitted to committing the crime. During cross examination it was put before this witness that his purpose was to exonerate his son from wrong doing.  He replied in the negative. Crucial to the cross examination is that advocate Phoko put the version of A4 to this witness as thus:

CC: A4 states that he was coerced. He was coerced into committing the acts by his brother A1 to do this.

PW3: That is up to the court to deal with and decide.

4.2.3 I found PW3 to be a credible witness notwithstanding the alleged bias that he was the father of A1. He did put his son in the scene of the crime as part of the conspirators. His evidence identified the participants of the crime as the accused.

The evidence of the investigating officer PW4 talked to the pointing of weapons used in the commission of the crime. Each person picked up the weapons they had used during the commission of the crime. He testified that A4 picked up a sword. Corroborating PW1.

4.2.4 The cross examination of this witness pointed at the contradictions that he had made in relation to the dates of arrest of the accused. Specifically, that A1 was arrested before the others whilst they had been arrested the following day. Whereas in his evidence in chief he said he arrested them en-mass on the first day. The other contradiction related to the weapons identified by A6 that they were brought by the person other than the one mentioned by this witness. This witness admitted the mistake he made and was quick to acknowledge that he could possibly have forgotten.

1. 1. 5. Whilst I acknowledge these contradictions, I find them of minimal in value to the issue at hand to cause any stir to the credibility of the totality of evidence. Whether the accused were arrested together or on different days does not really change the overall evidence because their defence is not time related such as alibi. I also acknowledge that due to the nature of their work, police officers are likely to forget minor details of their investigations. It is only when their evidence changes the whole face that it calls for attention and scrutiny of the courts.

 

1. 1. 6. Of importance is that this witness corroborated the evidence which had stated that A4 picked a sable when they were asked to pick their weapons. I have stated earlier that the view that they were not picking the weapons they used in the commission of the crime falls flat in the light of the fact that these were the weapons that they were specific about to PW1 and they were narrating them when asked about their participation in the crime. It is overstretching the truth to suggest that they were just picking that which they owned. Otherwise A4 would have picked his knife.

 

1. 1. 7.  The issue of contradictions was captured in the case of S v Mkohle,[1] the then Appellate Division said the following:

“Contradictions per se do not lead to the rejection of a witness’ evidence. … [T]hey may simply be indicative of an error. … [N]ot every error made by a witness affects his credibility; in each case the trier of fact has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness’ evidence.”

 

4.2.8 The paramount question is whether the prosecution had proved its case beyond reasonable doubt. The crown had proved that this accused had been part of the conspiracy, had pointed out the weapons he had used and had put him at all three houses through circumstantial evidence. The crown had however failed to give direct evidence regarding his specific participation.

 

[5] THE GUILT OF A4-THE CROWN’S SUBMISSIONS

5.1 At the close of the crowns case this accused took the stand in his defence. He confirmed being part of the meeting where he conspired with the co-accused to kill the deceased persons in all three counts. He was invited to this meeting by his elder brother A1. He put all accused persons in this meeting. The crown had established his role in the conspiracy. He was an integral part of the plan. He knew that the purpose was to kill. He aligned himself with the plan. Thus, the crown had proved common purpose.

5.2 His version of the events of the day was that once the mission was at the execution stage, when they left A1’s home he lagged behind but was called by others to join them which he did.

5.3 Advocate Phooko argued that the Crown had discharged the onus placed on it to prove the guilt of the accused beyond reasonable doubt in that he had proved that the accused had been part of a conspiracy.

5.4 To this end, he was relying on the requirement of conspiracy. Conspiracy to commit a crime is defined as: -

1. Two or more persons 2. Agreeing 3. To (a) commit; or (b) assist in; or (c) procure the commission of 4. A crime.

5.5 The case of the crown was also based on the doctrine of common purpose. The submissions by the crown counsel being to the effect that, once they had conspired to kill the three elderly women, the massacre and bloodshed that ensured thereafter would bind all accused persons under the principle of common purpose. 

5.6 He drew to the attention of the court the evidence that:

1. This witness was part of the meeting that was held. The sole purpose of this meeting was to have a meeting of the minds that the participants were to murder the three (3) women.
2. This accused voluntarily joined the meeting and voluntarily accepted the plan to kill. This accused therefore had dolus directus.
3. The execution of the mandate was carried out by this witness.
4. Crown witnesses and admitted statements proved that this witness pointed at the weapon he admittedly used during the commission of the crime.
5. This witness was present at all three of the homes.
6. Even if the court were to accept his evidence as reasonably, probably true, that his role was to guard and provide illumination for the actual perpetrators, under the principle of common purpose he was guilty of murder.
7. He did not dissociate himself from the commission of the crime. He likened his behaviour with that of PW2 who left after the meeting and never went back to commit the murder of the 3 elderly ladies
8. He had motive since he believed that his loved ones died at the hands of these 3 women whom he believed were witches.

5.5 It now becomes imperative for the court to discuss principles of common purpose so as to establish whether the crown had proved its case in terms of the legal standard required. The starting point will be the doctrine of common purpose.

 

[6] COMMON PURPOSE- THE LAW

6.1 The burden of the crown in proving common purpose and the participation of a party who allegedly committed murder in common purpose is outlined in the case of S v Sefatsa and Others[2]. In order for the court to make a finding on commission of crime on joint enterprise or common purpose the following have to be proved.

6.2 In the first place, the accused must be present at the scene where the crime was being committed. Secondly, he must have been aware of the criminal activity. Thirdly, he must have intended to make common cause with those who were actually perpetrating the crime. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the crime by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite mens rea so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.[3]

6.3 On the issue of mens rea of the participants, it was stated in Sefatsa that:

In the case of each of these accused, the conduct described above plainly proclaimed an active association with the purpose which the mob sought to and did achieve, viz the killing of the deceased. And from the conduct of each of these accused, assessed in the light of the surrounding circumstances, the inference is inescapable that the mens rea requisite for murder was present."

 

6.4 A causal connection between the acts of every party to the common purpose and the death of the deceased need not be proved to sustain a conviction of murder in respect of each of the participants.

6.5 As Kemp[4] puts it;

As “a matter of policy, the conduct of each perpetrator is imputed (attributed) to all the others”.

6.6 In Thebus v S, Moseneke[5] J confirm his position put in the following terms;

The principal object of the doctrine of common purpose is to criminalise collective criminal conduct and thus to satisfy the social ‘need to control crime committed in the course of joint enterprises.  The phenomenon of serious crimes committed by collective individuals, acting in concert, remains a significant societal scourge.  In consequence crimes such as murder, robbery, malicious damage to property and arson, it is often difficult to prove that the act of each person or of a particular person in the group contributed causally to the criminal result.  Such a causal prerequisite for liability would render nugatory and ineffectual the object of the criminal norm of common purpose and make prosecution of collaborative criminal enterprises intractable and ineffectual.

 

6.7 Does this mean that accused persons who are charged with murder under common purpose should be painted with the same brush, their participation not withstanding? This question was the subject matter in Sefatsa as the judge pondered;

Thus, the question that must be faced squarely is this: in cases of the kind commonly referred to in our practice as cases of 'common purpose', in relation to murder, is it competent for a participant in the common purpose to be found guilty of murder in the absence of proof that his conduct individually caused or contributed causally to the death of the deceased?

 

6.8 The issue of guilt and participation of an accused and how the court should conclude such based on common purpose was the subject matter in the case of Maboka and Another v R and this is what the court had to say[6]:

It must always be borne in mind, however, that the modern approach is that there is no magical power contained in the doctrine of common purpose and that where there is participation in crime, each of the participants must satisfy all the requirements of the definition of the crime in question before he can properly be convicted as a co-perpetrator.  Such was the view of the [South African] Appellate Division in S v Williams 1980 (a) SA 60 (A) at 63; S v Maxaba 1981 (1) SA 1148 (A) per Viljoen JA; S v Khoza 1982 (3) SA 1019 (A). ‘It is salutary for courts then to exercise some caution to ensure that innocent persons are not convicted for crimes committed by others, for such is the inherent danger of the doctrine of common purpose.

 

6.9 From the forgoing legal discussion, the crown has indeed been able to establish that this accused participated in the crimes. He was willingly being part of the plan to kill the three women. Whilst at the close of its case it had not particularized his participation, there was no evidence that excluded him from being a participant.

6.10 In response to the crowns case, the defence put forward its defence in order to exonerate the accused. It raised the defence of compulsion. Advocate Fihlo submitted that the accused was coerced into committing the crime because his brother A1 had threatened to withdraw all financial support he was giving him, if he does not partake or participate in the crime. This prompts the court to interrogate the legal requirements of the defence of coercion in order to establish whether this accused can succeed. The ultimate outcome in the success of this defence is complete discharge.

 

[7] COMPULSION- THE LAW

7.1 Compulsion as a complete defence was accepted as law in the case of S v Goliath[7].  The case dealt with the issue of whether compulsion could constitute a complete defence to a charge of murder. The court held that compulsion could indeed constitute a complete defence to a charge of murder if the accused had no reasonable means of escape and the threat of death or serious injury was imminent.

7.2 The requirements of the defence of compulsion are;

(1) The endangering of a legal interest of the accused;

(2) By a threat which has already commenced or is imminent;

(3) Which threat is not caused by the accused’s fault;

(4) Making it necessary for the accused to avert the danger;

(5) And the means used to avert it are reasonable in the circumstances.[8]

7.3 In the English case of R v Hasan,[9] the court in defining the threat, posed this question:

Would the defendant have been impelled to act as they did because, as a result of what they reasonably believed the threatener had said or done, they had good cause to fear that if they did not so act the threatener would kill or seriously injure them?

7.4 The above quote or question suggests that only a limited category of threats could qualify as a defence - that is, if there were threats of death or serious bodily harm.[10]

7.5 In the case of S v Mandela[11], it was said that these threats from the third party can manifest themselves in different forms. The threats could be open threats of violence or they could be threats of future violence.  What the law states is that where one person uses violence, or threats of violence to compel another to perform a criminal act against his wishes, the latter’s conduct is regarded as voluntary in our law, but he will escape criminal liability on the basis that their conduct was not unlawful in the circumstances. The court in Mandela rejected the defence of compulsion/necessity where certain factors were absent, such as the immediacy of life-threatening compulsion.

7.6 I am therefore left with no option but to scrutinize the allegation by A4 of compulsion or coercion. I do so relying on the evidence before the court.

 

[8] THE EVIDENCE BEFORE COURT - THREATS

8.1 From the evidence before me, it is not clear when this threat was made. If it was made during the hatching of the conspiracy, PW2 would have possibly alluded to it. I nonetheless accept the version of the accused that this threat was made.

8.2 As has been said repeatedly, the threat is the fact that his brother took care of the family economically. The threat his brother posed to him was to withdraw this assistance. The question therefor is, what legal interest was he protecting that could find him compelled to commit a crime in its stead? Is the legal interest his own welfare?

8.3 Now, this accused is an able-bodied man whose physical and mental capacity should ordinarily capacitate him to take care of himself. If he is allowed to kill for economic reasons, then the court will be condoning laziness or worse, diminishing the value of life. What this accused submits as a threat cannot, by any stretch of imagination, be construed as falling within the legal requirements of compulsion.

8.4 There is no evidence that there was an imminent threat to his life. I am persuaded to conclude that his evidence alludes to the fact that he chose to murder three innocent women so he could be supported financially by another person. That hardly constitutes protecting a legal interest.

8.5 As a result of this, I conclude that A4 has not adduced evidence that would sustain his defence. He has not met the legal requirements of the defence of compulsion or necessity.

 

[9] THE GUILT OF OELE POTO

9.1 The prosecution has led evidence that proved that the accused was part of the plan or conspiracy that agreed to the murder of the three deceased elderly ladies. When he went to the scene or scenes of the crime, he associated himself with the plan to murder these women.  This he manifested in the carrying of deadly weapons when he went to the scene. Being physically present at the scene and taking part by, according to his version, keeping light and or keeping guard.

9.2 According to the version of this accused he was present a deceased A1’s house, keeping guard. When the party proceeded to the home of deceased 2, he had lagged behind after responding to the call of nature. He therefore never made it to the house to participate in the murderous acts. He was also present at the home of deceased 3. He maintained that his role was to keep the light on so as those committing the crime had adequate illumination.  He also kept guard so as to alert the main perpetrators of any imminent danger.

9.3 These acts point directly towards knowingly and purposefully associating himself with the crime as stated in the cases of Mgedeza and Sefatsa. Safe for the home of deceased 2 where he claims that he responded to a call of nature, he never dissociated himself with the common enterprise.

9.4 Based on the doctrine of common purpose, I therefore find that this accused cannot escape criminal liability. More so where his defence does not meet the legal requirements.

 

10. JAKOBO MOFOLO

10.1 The crown led evidence proving this accused’s presence when the conspiracy to murder the three deceased took place at Rethabile Poto’s place. This was the evidence of PW2 who had also participated in the meeting. This was confirmed by the accused himself when he took the stand.  Advocate Phooko also pointed out that the evidence that connected this accused directly to the commission of the crime was the fact that he picked up the weapons that he allegedly used in the commission of the crime. This was said by PW1. I have already laid to rest the debate whether they were picking the weapons they owned versus the weapons they used in the commission of the crime in that it cannot be that during the stage of investigating a crime, the police would ask that an accused points at a weapon he did not use in the commission of a crime.

10.2 The crown put this accused at the three houses under the doctrine of common purpose to establish his guilt.  It had, during the crown’s case, led direct evidence that put the accused on the scene. It relied on the fact that the mission which had been the subject matter of the conspiracy, had to be completed as agreed and this accused saw it to completion.

10.3 At the close of the crown case the crown argued that the guilt of this accused was:

1. Conspiring to kill the three (3) deceased
2. Actively participating in the murders
3. Voluntarily pointing out the murder weapon.
4. Intentionally associating with the murder

10.4 When this accused took the stand, he only accepted being at the home or that he participated in the joint mission or commission of the crime at the home of deceased 3. His co-accused Oele Poto A4, however puts him in the scene at deceased 1’s house. He alleges that he was keeping guard. A4 also gave evidence that this witness was not present at the home of deceased 2. He admitted that he was present at the home of deceased 3 keeping watch. His co-accused, accused 4 puts him inside the house and so did A6.

10.5 The crown had indeed established and had discharged its burden and had proved the guilt of this accused beyond reasonable doubt under the principles of common purpose. The version of the defence merely articulated the specific participation which talks to the issue of moral blameworthiness and not the guilt.

10.6 This accused presented himself as a shifty witness. His demeanor did not instill confidence. He was not a credible witness.

 

11 JAKOBO MOFOLO’S DEFENCE

11.1 Advocate Fihlo raised on behalf of this accused which was also articulated by him when he took the stand that he acted as he did because he believed that the three deceased were witches and they were responsible for the death of his parents. He was effectively raising witchcraft as a defence.

11.2 Unfortunately, in this jurisdiction a belief in witchcraft is not a defence. It also talks to the issue of moral blameworthiness of an accused.

11.3 This could be because either as a science or as a belief or as a religion witchcraft cannot be proved. As Maqutu J put it;

“This is not so, but accusations of witchcraft are easy to make and hard to refute. It is usually innocent old women who are falsely and unjustly accused of witchcraft. This evil ought to cease because the innocent suffers, but superstition is unfortunately hard to eradicate. People who hold these beliefs of witchcraft are genuine in their beliefs but mistaken”.[12]

11.4 In R v Rankali and Others[13] Lehohla J, (as he then was), resisted the temptation to acquit the accused based on their belief in witchcraft. Despite being persuaded by detailed research by counsel of the origins and effect of witchcraft to a commission of a crime.

11.5 It is therefore settled law in our jurisdiction that, witchcraft is not a defence to a commission of a crime.

 

[12] THE GUILT OF JAKOBO MOFOLO

12.1 I find that the crown has proved its case beyond reasonable doubt. The totality of the evidence placed the accused at the scene of two (2) houses. There is no evidence of dissociation with the crime. He was a willing participant to see the mission through.

 

12.2 LEHOKO PAKISO -A6

12.1 He was A6 in the charge sheet. To establish his guilt the prosecution led evidence to the effect that he was part of the conspiracy that planned the killing of the three deceased. Evidence also points towards him arriving at the meeting armed and ready for action. The crown also established his guilt by evoking the principles of common purpose being planning or conspiring (PW2), active participation (pointing out of the weapons) and active association.

12.2 The evidence pointed that he entered the house of deceased 1 through the window. Then the evidence of PWI shows the injuries sustained by the deceased. They are consistent with the weaponry held by this accused.

12.3 At deceased 2’s house, the role played by this accused was that he prevented the deceased from escaping, thus facilitating her murder.

12.4 At deceased 3’s house, this accused got to her house.  There is no evidence that he categorically dissociated himself with the commission of the crime.

 

[13] THE DEFENCE OF PAKISO LEHOKO

13.1 The defence initially raised insanity which was later changed to subminimal intelligence. This was after the evidence of the medical doctor. He testified that this accused cannot be categorized as insane but one whose intellectual capacity was “a little below average”. The doctor testified that the accused knew the difference between right and wrong and can appreciate it.  He testified that the test and examination of the accused gave these results.

13.2 I contrast these with the findings of the court in the cases of R v Tsukulu Makaba,[14] and Rex v Moseli[15] where the psychiatrist testified and proved the insanity of the accused. In contrast the psychiatrist herein informed the court that the accused could not be classified as insane.

13.3 The plea of insanity therefore fails in the light of the expert evidence before the court. Any other opinion proffered falls short of this led by the doctor. In fact, no opinion was offered other than that of the medical practitioner.

13.4 The defence also relied on what could be called inconsistencies in the evidence given by various witnesses. I am of the view that the inconsistences do not go to the merit of the case.

13.5 The case of Rex v Motsoane[16] demonstrates the level of inconsistencies which cause the court to disbelieve a witness. Such inconsistences have to go to the core of the evidence so as to render such totally unbelievable. This is not the case here.

 

[14] VERDICT

14.1 From the aforegoing, I make the following findings on the guilt of the accused;

A3 JAKOBO MOFOLO, I find you guilty as charged on all counts

A4 OELE POTO I find you guilty as charged on all counts

A6 PAKISO LEHOKO, I find you guilty as charged on all counts.

My assessors agree with me.

14.2 I invite the accused to address the court on extenuating circumstances.  

 

[15] EXTENUATING CIRCUMSTANCES

15.1 Advocate Fihlo pointed towards the accused’s belief in witchcraft as an extenuating factor. Advocate Phooko disputed this and relied on the writing of the author Terreblance[17] to postulate that in order for witchcraft to succeed as a mitigating factor, there must be evidence that the said witches agitated the perpetrators not long before the commission of the crime. It was his argument that on the record, there was no such evidence. I hold a different view in as much as there is evidence that the accused persons were not convinced that the deceased were witches.

A3 specifically pointed at them as being responsible for the demise of his mother. So did A4 who believed, that the three (3) deceased killed his uncle. He believed, although persuaded by his brother Rethabile, that these three (3) still constituted a threat to their welfare. A6 also believed that the three (3) deceased were responsible for the uncle’s death.

15.2 At the end, I find that all three accused believed that the deceased were witches who were responsible for the deaths of their relatives.

15.3 Therefore, the court is persuaded that in terms of section 290 of the Criminal Procedure and evidence Act, the death sentence shall not be imposed in respect of these accused.

 

[16] MITIGATING FACTORS

16.1 Advocate Fihlo on behalf of the accused stated that;  

A3

He was a first offender. A father and a bread winner.

A4

He was a first offender, a father and a caretaker of his brothers children.

A6

He was a first-time offender and he had intellectual disability.

 

 

[17] SENTENCES

17.1 Relying on the cases of s v Mgedeza and S v Sefatsa, each of the accused herein will be sentenced in accordance with their individual participation in the crime.

17.2 The accused are all rural boys. At the time of the commission of crime they were transitioning from youth to adulthood. I take the view that they had not fully developed into the category of adulthood despite their age owing largely to the unsophisticated rural life.

17.3 Accused 6 is found to be of subminimal intelligence. Easily influenced due to this mental condition. Although it cannot be said that his capacity is diminished, it is medically not at the same par as an ordinary person. This affects his moral blameworthiness somewhat.

17.4 Although accused 4 has not met the legal requirements of coercion, I cannot ignore the level of influence his brother Rethabile had on him. He instilled fear at his weakest point, flaunting his wealth and financial muscle. In terms of the rural set up, having a small-scale café is regarded as wealth. The sentence given to this accused should reflect this factor.

17.5 Accused 3 lost both his parents under what he believed to be mysterious circumstances which he attributed to the three deceased. The sad element of belief in witchcraft is that it has no scientific proof. The best that the law has done is to reduce moral blameworthiness. This however is not a blank cheque in the sense that the accused person has to show a nexus between his belief and the commission of the crime. It seems that at all material times this orphan has held a view that his status was as a result of the deeds of the three deceased. Ordinarily this sounds unreasonable and farfetched. This seems not to be the view he held in isolation it was the bait that A1 used to twist the arm of the accused to participate in the crime. I incorporate these factors in sentencing this accused.

 

JAKOBO MOFOLO

Count 1-20 years’ imprisonment

Count 2-10 years’ imprisonment

Count 3-25 years’ imprisonment

The sentences to run concurrently

 

OELE POT0

Count 1-25 years’ imprisonment

Count 2-10 years’ imprisonment

Count 3-10 years’ imprisonment

The sentences to run concurrently

 

PAKISO LETHOKO

COUNT 1-15 years’ imprisonment

COUNT 2-8 years’ imprisonment

Count 3-15 years’ imprisonment

My assessors agree with me.

 

 

------------------------------

M. G. HLAELE

JUDGE

 

Crown:     Adv. Phooko

Defence:   Adv. Fihlo