HIGH COURT OF LESOTH
PEETE 1st Accused
KOEKOE 2nd Accused
by the Hon. Mr Justice M.L. Lehohla on the 27th day of March. 2000.
This is a
very old matter. Even if it were to start on the first day it was set
down for on 22-11-99 it could not be pardonable that it came to be
heard more than ten years after the incident that gave rise to the
accused being charged.
hearing failed to start on the above date because of absence of
witnesses in respect of whom there was not even proof that any had
been served with subpoenae. Thereupon the matter was postponed to 7th
March, 2000. On that day none of the accused who were on bail pitched
on time in Court. One of them arrived
hours later than Bench Warrants for their arrest had been issued and
explained that he had gone to the old High Court premises and didn't
know that the seat of the Court had shifted to the new grounds. The
warrant against him was therefore cancelled. The other accused
arrived under police escort the following day stating that though he
was ready and willing to come to Court he had no money to facilitate
his conveyance from his home to Court. Thereupon his Bail was
suspended for the duration of this trial which started two weeks ago.
accused are charged with murder; it being alleged that on or about
28th October, 1989 and at or near Luma-Luma Ha Peete in the District
of Berea the accused did one or the other, unlawfully and
intentionally kill Motsamai Mokotjo.
accused pleaded not guilty to the charge.
disconcerting offshoot of the delay in bringing this matter to trial
is that the evidence of two Crown witnesses who have since died i.e.
PW2 and PW5 Molula Mitchell and Trooper Seboka respectively had to be
admitted without benefit of being tested by means of
Cross-examination. This was done in terms of Section 227 of our
Criminal Procedure and Evidence Act 7 of 1981.
Post-Mortem report of the Doctor who performed the post-mortem
examination was also admitted without being tested because that
doctor is said to have completed his stint of service in Lesotho and
left for his country of origin or is otherwise untraceable.
exhibits allegedly used in the combat between the accused and the
deceased are said to have been lost somewhere in the Subordinate
Court T.Y. before they could reach the High Court.
to say with the exception of one extraordinary witness of amazing
mental clarity all other witnesses' recollection of events had
understandably faded. I need not emphasise what a distressing state
of affairs this sort of thing amounts to. I would urge the
authorities concerned in the administration of Justice to find an
immediate remedy to this dissatisfactory malady that can only, if
allowed to prevail, result in the subverting of the administration of
justice and disrepute of the judicial system in this territory.
admitted Post-mortem examination report marked "A"
indicates that the deceased's body was examined by Dr Muwari more
than 24 hours after the alleged
The doctor formed the opinion that death was due to head injury. The
postmortem was conducted on 01 -11 -1989, the body having been
identified to the doctor by Malefetsane Mokotjo (PW3) and Monare Foso
regard to external appearances the doctor has catalogued:
deep cuts on right wrist going through bone
deep cuts on both ankles going through bone
fracture behind left ear and subdural haematoma.
evidence of PW1 'Matiisetso Mabote narrates a simple tale that on the
day in question i.e. 28-10-89 she had occasion to go to MaRegina's
house. Her purpose for going there was to borrow some yeast. MaRegina
is a known brewer of beer for sale in the neighbourhood.
after sun set when PW1 set for MaRegina's house. In there she found
the late Molula PW2 at Preparatory Examination, one 'Maselepe and the
deceased. The trio were just seated and engaged in light conversation
when PW1 came there. MaRegina was however absent.
asked for yeast from 'Maselepe who went to fetch it from the other
It was at
this point that accused 2 entered the house in which the deceased,
PW1 and Molula were seated. Accused 2, without uttering a word and in
response to no provocation whatsoever hurled abuse at the deceased
imprecating a curse upon the letter's mother's front passage. There
and then and in the same instant he fetched the deceased a blow on
the head with a quince stick. The deceased who had been seated rose
immediately and hit back at the deceased too and dealt him a stunning
blow which felled the latter to the ground. The deceased remained
standing and apparently watching over accused 2's next move. Accused
2 rose and while the deceased's attention was focused on him and away
from the doorway accused 1 who was then acting headman or chief of
the area budged in unbeknown to the deceased and dealt the deceased a
stunning blow at the back of his head around the neck region
whereupon the deceased fell face down and never managed to rise
again. The blow to the nape of the deceased's neck was dealt by
accused 1 with an iron-rod.
two accused continued belabouring the deceased with the
above-mentioned weapons while the deceased was down. During the
process of belabouring the deceased thus accused 2 relieved himself
of the quince stick which he had been
and instead equipped himself with a home-made sword supplied by
continued chopping at the deceased's wrists and heels (described as
ankles in the post-mortem report Exhibit A)
PW1's evidence that this assault lasted about an hour.
during the course of this assault that accused 2, casting his
menacing glance at PW1 and Molula who had been standing stuck by the
wall and frozen in fright hurled abuse at them and said "just as
well you have stuck by that wall, your mothers' vaginas'"
1, according to PW1, when he entered appeared to be in a fighting
mood. He did nothing to intervene. He didn't reprimand accused 2 for
swearing at PW1 and Molula by their mothers' private parts despite
that he must have heard when this was uttered and seen to whom it was
so uttered. Instead he continued belabouring the deceased with an
iron rod on joints of both hands and feet". When accused 2
uttered these abusive words he is reckoned to have been barely an
arm's length from accused 1.
PW1's evidence that 'Maselepe didn't make her way back into the hut
where the assaults were taking place. She was insistent that she
doesn't take alcohol; further that it had been days since MaRegina's
supply of beer had dried out. She vehemently denied that anybody was
drinking beer in that hut nor was any being sold that evening.
the Court that she and Molula managed to escape from the hut leaving
the two accused in there with deceased lying prostrate on the ground.
She and Molula separated immediately on coming outside where they saw
a big number of boys gathered there by the door outside doing
leaving the hut she said she had observed wounds effected on the
deceased's wrists and heels.
learnt in the morning that the deceased had died.
denied that accused 1's version that the deceased and accused 2 were
holding fighting positions at any stage after accused 2 had picked
himself up from the temporary fall he had had shortly because accused
1 hit the deceased at the back
neck and the latter never rose again.
the brunt of cross-examination well and her story had a strong ring
of truth to it. In fact accused 2 despite his earlier attempts to
discredit PW1's evidence ultimately took the attitude in his evidence
that if PW1 says these things that she testified to happened in her
presence he would have no quarrel with her evidence because, as he
said, she was testifying to what she saw.
even accused 1 found himself in a cleft-stick in his attempt to cast
doubts on Pw1's version. His counsel had intimated that she couldn't
have made accurate observations because of an admixture of fright and
drink. But her acceptable and credible story is that she doesn't
drink and that more over there was no drink at MaRegina's that
evening. The version of both accused centred on this contention was
thus demolished and exposed as palpably false.
accused 2's story that when he came to MaRegina's house he ordered a
scale of beer from "Maselepe. I reject likewise his statement
that for no apparent reason the deceased rose and hit him first with
a knob Kerne made of putty.
attempts by both accused to show either that PW1 and Molula had
either long left the scene according to accused 1 who said he
remained in there for hardly five minutes trying to separate the two
combatants and left no one else but the deceased and accused 2 are
rejected as devoid of all truth. They are vain attempts aimed at
depriving the scene of eye-witnesses.
when leading PW1 the Crown in fairness particularly to accused 2
alluded to possible love affair between the deceased and accused 2's
wife, which possibility amounted to no more than just a rumour, the
court sought to elicit from PW3 Malefetsane Mokotjo whether there
could be any basis from this rumour regard being had to the fact that
normally there is never a smoke without a fire. But on this aspect of
the matter PW3 said he has for a long time been a surviving head of
the Mokotjo family and that at no time was a complaint made to him in
that capacity about the existence of illicit love affair between his
nephew the deceased and accused 2's wife.
importance is that no version to the contrary was put to Crown
witnesses on behalf of any of the accused. Yet accused 2 when giving
evidence under oath said that he actually complained to PW3 about the
latter's nephew's conduct. On the basis
vs Smith 1954(3) SA at 434 this contention stands to be rejected as
an afterthought. Needless to say Small was referred to with approval
by Maisels P in Phaloane vs Rex 1981(2) LLR at p.246 in the following
apt terms :
"It is generally accepted that the function of counsel is to put
the defence case to the Crown witnesses, not only to avoid the
suspicion that the defence is fabricating, but to provide the
witnesses with the opportunity of denying or confirming the case for
the accused. C/f Small vs Smith 1954(3) SA at 434."
contention of accused 1 also stands to be rejected in that it is too
little to the point to be worthy of serious consideration. First he
doesn't come out clearly as saying there was a love affair between
the deceased and accused 2's wife. He dodged giving a straight answer
to this. He merely contended himself with saying accused 2's wife
came to him long time before the incident complaining that the
deceased threatened her with a knife and took away R20-00 from her
passport without her consent. While this has the demerit of not
having been put to Crown witnesses it doesn't serve as proof of a
love affair referred to above. Moreover it took place so long before
the incident as not, without proper basis, to be capable of
furnishing motive for the unprovoked attack on the deceased.
remains to deal briefly with the position in law. The intention to
gathered from (1) the nature of injuries inflicted on the deceased
which in turn give a suggestion of the type of the weapons used, (2)
the position in the body of the deceased where the injuries have been
inflicted (3) and the degree of force with which
weapon was wielded to inflict those injuries.
instant case though the multiple wounds were found mostly on the
wrists and ankles the fatal one was on the head; a no doubt one of
the most vital parts of the human body. Furthermore it has not
escaped the attention of this Court that these wounds were so deep as
to get to the bone. This betrays application of brutal force coupled
with savage violence. The nature of the injuries described by the
doctor as cut wounds on wrists and ankles corroborates PW1's version
that they were inflicted with both iron rod and home-made sword both
of which weapons were said to have been wielded by accused 1 and 2
attempt was made on behalf of the defence to show that the accused
couldn't have conspired to attack and kill the deceased as none of
them knew that the deceased was in there - Accused 2 having come
there after exhausting the beer his wife and he had been treating
themselves to at accused 2's home and having been attracted to the
scene by a "phephezela cloth" which is usually displayed
an invitation to beer drinkers that beer is in good supply at any
accused 1 for his part was gravitated to the scene on hearing sounds
of disturbance inside MaRegina's hut.
simple answer to this contention which seeks to vitiate the existence
of common purpose or conspiracy to commit a crime is that common
intent can come about in a variety of ways among which is included
the instant and spontaneous participation in the crime without proof
of any previous meeting at which a plan to commit a crime was
hatched. Thus if A and B moving from opposite directions and without
betrayal of any previous meeting between the two, come upon C and
each inflicts injuries from which C dies, then it can be inferred
from the individual acts of each participant that they must have
conspired before-hand to embark on the unlawful and wrongful
enterprise in pursuit whereof death resulted.
accused were hard put to it to furnish any reason why PW1 would come
and falsely implicate them in this trial. They acknowledged that
there has never been history of previous existence of bad blood
between either of them and PW1. Her story was supported to a large
measure by that of another eye-witness the late Molula PW2 save in
the minor respect that while Molula says accused 2 used the
home-made sword throughout PW1 says accused 2 started off using a
stick but ended
using this home-made sword. I would resolve this discrepancy in
favour of PW1's version which was subjected to probing by
cross-examination while that of PW2 enjoyed no such test. Moreover as
I stated earlier PW1's quality of delivery of her tale, her demeanor,
composure and lack of bias in favour of either side to the dispute
inspired this Court with confidence that her testimony is credit
worthy. She indicated that the deceased was no friend of hers and
owes him or his memory no favour. In the same breath she bore neither
of the accused any grudge.
also that after committing this crime accused 2 went away for close
to a year fully aware that the deceased could not have survived the
injuries he sustained indicates that he was fleeing from his crime. I
reject his story that he was not aware what could have befallen the
deceased when he parted with the latter. In fact having stated that
the deceased was much feared by chiefs and police alike, a factor
again which was never put to the Crown witnesses, accused 2 gave an
inkling of his attitude when he conceded hat anyone fighting with a
man of the description he vividly painted as feared would be put
under the necessity not to spare such a man any quarter when fighting
him. This attitude may well account for the multiple savage injuries
the deceased sustained before and no doubt even long after he had
Accused 2 said the fight lasted about thirty minutes. PW1 places the
duration of the attack on deceased as lasting about an hour. I accept
therefore that the assault on the deceased before and after he had
died went on for no less than thirty minutes.
In a vain
attempt to persuade the Court that he had been provoked by the
deceased's conduct towards his wife accused 2 made so bold as to say
under oath that he caught the deceased in bed with his wife years
before this incident. The amazing thing about this story is that
accused 2 did nothing about such a provocative challenge to the
integrity of his marital rights. This is an afterthought and
fabrication indulged in in an attempt to give substance to the rumour
which credible evidence showed had no substance. None of the Crown
witnesses was told that accused 2 caught his wife in bed with the
deceased. Moreover the fact that years passed without accused doing
anything about it is a further indication that there was no substance
in the alleged incident.
above reasons this Court is satisfied that the Crown has proved
beyond doubt that the two accused are guilty of murder; and I so
circumstances have variously been described as factors which if
proved should redound to an accused person's benefit.
benefit which the accused person derives from extenuating
circumstances, if established, is that instead of suffering the
ultimate penalty he will only serve a term of imprisonment.
extent extenuating circumstances palliate the moral blameworthiness
of the accused convicted of a capital offence.
to establish the existence of extenuating circumstances is on the
accused on a balance of probabilities; and the test is subjective.
judgment that a Court makes when presiding on the instant phase of
trial is a moral one. In going about this task the Court is enjoined
to take into account any factor which is not too remotely related to
the alleged extenuating circumstances raised on behalf of the
factors may consist individually of-
- or immaturity
even at times the fact that the form of intent proved is dolus
eventualis as opposed to dolus directus.
is not exhaustive.
it is distressing to note that the authority of Naro Lefaso vs Rex C.
of A (CRI) No.7 of 1989 on extenuation (unreported) from page 11 to
page 12 has been overlooked or ignored, which expressed in the words
of Schutz P is to the effect that:
".........................I would stress that in a matter as
vitally important as extenuation, if the defence counsel wishes to
rely on an ex parte statement not based on sworn evidence he should
ascertain clearly whether the Crown admits its factual correctness.
If the Crown does not, defence counsel must consider whether he will
lead evidence or not. Needless to say I am not referring to an
argument which seeks to derive
inferences (that extenuate) from proved facts, but an argument that
asserts facts as facts without proof of them themselves".
to say in the instant case respective Counsel for the accused
informed Court that they didn't ascertain from the Crown if the
latter accepted their ex parte oratory as factually correct. The
Crown insisted therefore that no extenuating circumstances exist in
in the same breath conceded that accused 2's evidence that when he
left his home he had taken beer to which he had been treated by his
wife was not gainsaid. Furthermore the fact that there was this
rumour of illicit love affair between his wife and the deceased even
if when taken in isolation is worthless, the cumulative effect of
this factor taken in conjunction with drink is a factor which about
fits the bill. In this sense the Court accepts that a combination of
these factors had a bearing in reducing his moral blameworthiness.
The two factors working on each other were capable of egging accused
2 on to embark on rash action at the mere sight of the deceased whom
he perceived as responsible for causing his discomfort and souring
his marital life.
not much goes for accused 1 on the damning evidence that went
him in the main trial and hardly anything goes in his favour at this
phase of the proceeding yet if one considers and accepts that his was
a lesser role played in the execution of this sordid act, viewed from
the angle that a man who would in the circumstances use brutish force
as an "aggrieved" and drunken party would be accused 2;
then it stands to reason that accused 1 could not have in the
circumstances exceeded the self-deluded and so-called "wronged
party" in executing this savage attack on an innocent man.
above reasons the Court finds that extenuating circumstances exist in
respect of accused 2. In respect of accused 1 the Court very very
reluctantly finds only barely that he should benefit from the highly
strained and extended logic expressed above in order for him to
escape the ultimate penalty.
RULING ON PLEAS IN MITIGATION
assessors and I have heard the pleas in mitigation advanced on your
behalf by your respective Counsel. They very correctly indicated that
in respect of accused 1 that he is a first offender and regard being
taken of the fact that he is a fairly aged man, it stands to his
credit that he has had, so to speak, a clean slate of existence up
I am told that he is a peasant farmer, supports a wife and children
and of course I take it that it is true that he showed remorse in
this Court as I observed him during this trial. I am also told he is
respect of accused 2 likewise I am told he has no previous
convictions and that he supports an old and sickly mother, and that
this is true in respect of both accused - the long wait to date has
been very stressful. I did indicate in the main trial that it is
regrettable that upwards of ten years have been spent before this
matter could come to trial today. Apparently this must have
influenced Mr Masiphole very negatively because he asked me if I
understood that this matter has taken such a long time. I have no
qualms in assuring the learned Counsel that without any prompting I
took that into account.
said all these, the Court will be failing in its duty if it could
regard murder of a savage nature like this one as anything other than
one that merits a proper remedy. With respect to accused 1 who was a
chief, the fact that he participated in this savage attack on his
subject, and accused 2 for no reason whatsoever did this savage act
on a fellow being are matters of grave concern and total
deceased was given no opportunity to answer for himself, while the
two accused are standing here and have been given an opportunity to
answer for themselves. The chief and accused 2 constituted themselves
prosecutor, judge and executioner, all wrapped in one; with the
result that the poor victim didn't survive. Well he also had
next-of-kin. I am told one of you has got a wife and the other aged
mother and so forth. I stress that the deceased also has got
least sentence I can impose on accused 1 is one of fourteen years'
imprisonment and in respect of accused 2 fifteen years' imprisonment.
: Ms Mofilikoane
Accused 1 : Mr Mpaka
Accused 2 : Mr Masiphole
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