HIGH COURT OF LESOTHO
by the Honourable Mr. Justice B.K. Molai on 2nd day of October, 2002
accused persons are before me on a charge of murder. The body of the
charge sheet discloses that:
"Upon or about the 4th day of January, 1994 and at or near
Semenanyane in the district of Thaba-Tseka, the said accused one, the
other or all of them did unlawfully and intentionally kill one
was explained and put to them, the accused persons pleaded not guilty
to the charge. Mr. Mahlakeng, who represents all the accused in this
trial, informed the court that the "'plea of not guilty"
tendered by the accused persons
accordance with his instructions. The plea of not guilty was
accordingly entered in respect of all the accused persons.
worth mentioning, at this stage, that at the close of the crown case
an application for the discharge of the accused persons was made on
the ground that the crown evidence had not proved beyond a reasonable
doubt that they had committed the offence against which they stood
charged. As far as I am aware, there is no law compelling a court of
law to deal with the question of credibility of evidence, at this
juncture, unless, of course, it can be said that, on the face of it,
the crown evidence is so hopeless that to refuse the application for
their discharge and require the accused persons to answer the charge
against which they stand charged will amount to asking them to help
build the charge which the crown itself has failed to establish.
to be applied, at this stage, is whether, on the face of it, the
crown evidence has established a prima facie case for the accused
persons to answer. If the reply is in the affirmative the court is
entitled to refuse the application and reserve the question of
credibility to the end when the defence will have closed its case.
However, this does not mean that where, at the close of the crown
case, the application for the discharge of the accused persons is
turned down, the defence is obliged to call them into the witness box
or lead any evidence at all. The defence is perfectly entitled to
tell the court that it is closing its case without adducing any
evidence in its defence. It is only then that the court will be bound
to deal with the question of credibility of evidence and apply the
more stringent test of proof beyond a reasonable doubt to determine
whether or not the accused persons have committed the offence with
which they are charged.
application for the discharge of the accused persons was made, in the
present case, 1 applied the less stringent test of whether or not, on
the face of it, the crown evidence had established a prima facie case
for the accused persons to answer. I found that there was evidence
indicating that, acting in concert, the accused persons had brutally
assaulted the deceased with plastic sjamboks/and sticks. As a result
of the assault perpetrated on him by the accused persons, the
deceased sustained injuries which brought about his death. I reserved
the question of credibility of evidence and came to the conclusion
that, on the face of it, the crown evidence did establish a prima
facie case for the accused persons to answer. The application for the
discharge of the accused persons was accordingly refused. As it was
perfectly entitled to do, the defence told the court that, in that
eventuality, it was closing its case.
now proceed to deal with the question of credibility of evidence and
apply the more stringent test of proof beyond a reasonable doubt to
determine whether the crown evidence has established beyond a
reasonable doubt that the accused persons have committed the offence
against which they stand charged.
regard, it is significant to mention that, at the commencement of
Mr. Mahlakeng, on behalf of the accused persons, admitted the
depositions of Tlalimothoana Khalanyane, D/Sgt. Molelle and D/Tpr.
Khaba who had testified as P.W.8, P.W.6 and P.W.7, respectively, at
the proceedings of the Preparatory Examination. Mr. Molokoane,
counsel for the crown, accepted the admissions made by the defence
counsel. The depositions made by Tlalimothoana Khalanyane, D/Sgt.
Molelle and D/Tpr Khaba, at the proceedings of the Preparatory
Examinations, were admitted in evidence and it was, therefore, not
necessary to call them as witnesses to testify, in this trial.
In as far
as it is relevant, the evidence of D/Tpr. Khaba was to the effect
that he was a member of the Lesotho Mounted Police Service, attached
to the C.I.D. and stationed at Thaba-Tseka Police Station. On 10th
January 1994 he was on duty at his duty station when he received a
certain information following which he proceeded to a place called Ha
Tsoeukhala in the area of Semenanyane. He was in the company of a
certain police sergeant who had since retired from the police
service. He no longer remembered his name. They were travelling in a
arrival in the village of ha Tsoeukhala, D/Tpr. Khaba and his
companion met the headman, one Sekautu Khalanyane. Whilst they were
explaining their mission to him, the headman showed them two men,
viz. Chabasemona Khalanyane and Marakong Khalanyane, as two of the
people who had been detained and assaulted badly. They were both
approaching to where the two
officers were talking to the headman, in the village. When they
eventually came to them, the two men complained of having been
assaulted badly by the accused persons. D/Tpr. Khaba directed them to
proceed to the police vehicle which was waiting, some distance
outside the village.
to D/Tpr. Khaba, the headman then led him and the other police
officer to the home of one Mokaeane where they found the deceased
lying in bed in a rondavel. He had allegedly been badly assaulted,
together with the two who had been directed to go to where the police
vehicle was waiting outside the village and was unable to speak
properly. On examining him for injuries, D/Tpr.Khaba observed that
the deceased had one of his fingers broken. Both his buttocks were
badly swollen and he had a deep open wound on the left buttock. The
deceased was immediately assisted to where the police vehicle was
and Chabasemona were not examined for injuries because it was getting
dark and the police officers were in a hurry to take the deceased,
who was obviously in pains, to the hospital. However, Marakong and
Chabasemona told D/Tpr Khaba and the other police officer that the
accused were the persons who had assaulted them and the deceased.
Thereafter, the police officers conveyed the deceased, Marakong and
Chabasemona to Paray/Thaba-Tseka hospital where they were admitted. A
few days later D/Tpr. Khaba learned that the deceased had passed away
at the hospital.
Seeiso Mokaeane, testified that he was illiterate and lived at
Semenanyane, in the district of Thaba-Tseka. He knew the deceased in
his life time. The deceased and a certain Tankiso Mokaeane were his
own sons. He also knew all the accused persons before court. He and
the accused persons were the subjects of the same chief.
to P.W.2, on the day they were transported to Paray hospital, he
accompanied the deceased, Marakong Khalanyane and Chabasemona
Khalanyane. He confirmed the evidence of D/Tpr. Khaba that, on
arrival at Paray hospital, the deceased, Marakong and Chabasemona
were all admitted in hospital. As it was already late, P.W.2 spent
the night at Thaba-Tseka police charge office. On the following day,
he returned to his home at Semenanyane.
about two days later, P.W.2 received a report following which he went
back to Paray hospital where he found that his son, Phallang Mokaeane
(deceased) had passed away. He then proceeded to Thaba-Tseka police
charge office and reported the death of the deceased. He again spent
the night at the police charge office. In the morning of the
following day, the dead body of the deceased was transported, in a
police vehicle, from Paray hospital to another hospital, here in
Maseru. He accompanied the dead body of the deceased when it was
being transported from Thaba-Tseka to Maseru. It did not sustain
additional injuries on the way. He was the one who identified the
dead body of the deceased before the medical doctor who examined it
at the hospital, here in Maseru. I shall
the evidence of P.W.2, later in the judgment.
not really disputed that, on arrival at Paray hospital, the deceased
and his companions were attended to, and admitted in hospital, by a
medical officer who was the medical superintendent of the hospital.
Written reports were compiled in respect of the deceased and his
companions by the medical officer. Like in the case of his
companions, the medical report compiled in respect of the deceased
was brief and I can do no better than to quote it, in full. It reads:
P.O. Box 2
Thaba-Tseka 550 31/1/94
To whom it may concern
re: Ntate Phallamg Mokaeane, 25 years from Semenanyane
I certify that I treated as a M.O above mentioned patient at Paray
Hospital from 10.1.94. until he died on 13.1.94, 2:30a.m. He was
admitted on 10.1.94, 11:30p.m and alleged to have been assaulted on
3.1.94. He further alleged to have been kept as a prisoner by his
His general condition was fair and he was complaining about pain on
his buttocks. On 11.1.94 it turned out that he hadn't passed urine
since he got assaulted.
My findings: 2 deeply and plain wounds with severe infection and much
necrotic tissue on both buttocks, small abrasions everywhere and a
fracture of the 3rd finger left. I also assumed kidney failure. I
treated him with painkillers, antibiotics and local disinfectants.
His kidney didn't seem to recover. On 12.1.94 I did a debridement
(removal of infected and dead tissues). Despite that treatment his
condition got worse and he died due to kidney failure on 13.1.94.
Kidney failure was caused by toxic substances from his necrotic and
infected wounds and not having had enough liquid
during his captivity.
A. Siegwart. Medical Superintendent
Paray Hospital (Signature)''
significant to mention that according to the record of Preparatory
Examination proceedings, the medical officer who compiled the above
cited report was an expatriate. He had since left Lesotho and
returned to his country of origin. It was, therefore, not practical
to call him to testify as a witness. In the circumstances, Mr.
Molokoane, counsel for the crown, handed the medical report as exh.
"A" and part of the evidence, in this trial.
also be mentioned that Mr. Mahlakeng, who represents the accused
persons, told the court that he had difficulty with the term
"Superintendent". According to him the term might mean that
the above cited report was compiled by a person who was just a
hospital administrator and not necessarily a doctor or medical
officer at Paray Hospital.
I do not
agree. In the body of the report (exh. "A"), A. Siegwart,
stated that the deceased had been treated by him, as a medical
officer. It is to be observed that A. Siegwart also medically
examined Chabasemona Khalanyane, one of the people who were
admittedly admitted, together with the deceased, at Paray Hospital.
He compiled and signed a report in which he gave his designation as a
officer. He gave his qualifications as "M.D" i.e. Medical
Doctor. The dictionary meaning of the term "Superintended"
is an official who has control in an institution. By qualifying the
term superintendent with the word medical, in his designation, means
that A. Siegwart could not have been anything but the doctor or
medical officer in-charge of Paray Hospital.
further common cause that a medical doctor performed a post-mortem
examination on the deceased's dead body after it had been transported
from Paray Hospital to Maseru. The medical doctor compiled a report
which was, by consent of the parties, handed in as exh. "B",
in terms of the provisions of s. 223 (7) of the Criminal Procedure
and Evidence Act, 1981.
to exh. "B", at about 15:10 hrs on 27th January 1994, a
medical practitioner examined a dead body of a male African adult at
the mortuary of Queen Elizabeth II hospital, here in Maseru. The dead
body was identified to him, by Seeiso Mokaeane (P.W.2), as being that
of Phallang Mokaeane (deceased). The external examination of his dead
body revealed that the deceased had sustained extensive wounds on
both buttocks and bruises on the face. On opening the body, the
internal examination revealed that the deceased had sustained injury
on both lungs and pleurae.
above findings the medical doctor formed the opinion that death was
due to shock resulting from the injuries inflicted upon the deceased.
I can think
good reasons why the opinions of the medical doctors who compiled
exh. "B" and exh. "A" as regard the cause of the
deceased's death should be doubted.
salient question that arises, for the determination of the court, is
whether or not the accused are the persons who inflicted the injuries
on the deceased and, therefore, brought about his death. In this
regard, the court heard the evidence of P.W.4, Marakong Khalanyane,
who testified that he was illiterate and lived at Semenanyane under
chieftainess Masefothafotha. He was a married man and had only one
child. The five (5) accused persons lived in the same village as he
did. He, therefore, knew them well. He also knew the deceased in his
life time. The deceased was the son of P.W.2.
to him, P.W.4 was, one day, arrested by the five (5) accused and some
other men. They accused him of having stolen sheep that belonged to
Al. He was fastened with a rope and taken into one of Al's huts where
he was severely assaulted with plastic whips and sticks by his
captives. Of the accused persons before court, A4 and his son (A2)
were armed with sticks whilst Al, A3 and A5 were armed with plastic
some time A3 and A5 left the hut in which he (P.W.4) was being
assaulted. When they later returned into the hut, A3 and A5 were
escorting one Chabasemona Khalanyane who was also fastened with a
rope and made to lie down next to him (P.W.4). The accused then
continued assaulting P.W.4 and
Khalanyane with their sticks and plastic whips/sjamboks.
after Chabasemona Khalanyane had been brought into the hut, A3 and A5
again went out. When they later returned, the two accused brought the
deceased into the hut. He (deceased) too was fastened with a rope and
made to lie next to P.W.4 and Chabasemona Khalanyane. When he looked
at him, P.W.4 noticed that the deceased already had a bleeding wound
on the forehead and his fourth finger was broken. After the deceased
had been made to lie next to him (P.W.4) and Chabasemona, the accused
continued assaulting them.
to P.W.4, they were kept in A1's hut and assaulted, as he had
described to the court, for about a week. They were not given any
food to eat or water to drink during that period. They denied the
accusation that they had stolen Al's sheep but to no avail as the
accused continued assaulting them. The hut in which they were
detained and assaulted was very small and congested, particularly so,
because it was also used to store hides. P.W.4 testified that
eventually he and the other captives were escorted to the chief's
place. He (P.W.4) and Chabasemona were each made to carry, a cooking
pot from their respective homes as proof that after Al's sheep had
been stolen and slaughtered, they (pots) had been used to cook the
meat. The deceased could not carry a pot because he was ill, as a
result of the assault perpetrated on him by the accused persons.
worth mentioning that in the evidence of P.W.4 he and his companions
accused of stealing and slaughtering Al's sheep some time during the
previous year. There was, therefore, nothing on the pots to indicate
that they had been used to cook the meat of Al's sheep. All the
indications on the pots were that they had been used to cook hard
as it may, P.W.4 went on to tell the court that, on their way to the
chief's place, the deceased became unable to walk. Al had to put him
on a horse which he pulled until they arrived at the chief's place.
At the chief's place, they found chief Abdula Rantletse. ChieftA1ness
Masefothafotha had already passed away, at that time. Chief Abdula
Rantletse refused to accept P.W.4 and his companions because they
clearly had been severely assaulted and injured. He instead ordered
the accused persons to take them (P.W.4 and his companions) to a
doctor for medical attention. However, the accused persons returned
P.W.4 and his companions to Al's place where the ropes, with which
they had been fastened, were removed from their hands. They were kept
in A1's hut for the night.
morning of the following day, P.W.4 and his companions were released
to go to their respective homes, in the village. According to P.W.4,
when he was below A5's homestead on the way to his house, in the
village, he met the police who told him to go to their vehicle which
was wA1ting below the village. On his way to the vehicle, P.W.4 was
joined by the police who were in the company of the deceased and
Chabasemona Khalanyane. The police then
them in iheir vehicle to Thaba-Tseka/Paray hospital. In his evidence,
P.W.4 told the court that, at the time the accused were escorting
them to the chief's place and the police transporting them to the
hospital, P.W.2 was, on his own accord, accompanying them.
arrival at the hospital, P.W.4 and his companions were admitted.
Whilst they were in hospital, P.W.4 learned from Chabasemona
Khalanyane, who was in the same ward with the deceased, that the
latter had passed away. When he was eventually discharged from the
hospital, P.W.4 returned to his home at Semenanyane.
old Chabasemona Khalanyane testified as P.W.3 and told the court that
he lived at ha Tsoeukhala in the area of Semenanyane. He was
illiterate. He knew all the accused persons before court. Al, A3 and
A5 were, in fact, his relatives and lived in the same village as he
did. A2 and A4 lived in a neighbouring village.
to him, P.W.3 remembered that on the forenoon of one day, in January
1994, he was on his way to the fields when A5 called him. He did go
to where A5 was calling him. That was at the homestead of A1 who was
his (A5's) father. On arrival at his parental home, A5 told P.W.3
that he and the people with whom he was had found a sick person
outside the village and that person was inside one of his (A5's)
parental huts. A5 then asked him (P.W.3) to enter into the
see the sick person.
enter into the hut and found a person lying on the floor. He
identified that person as P.W.4 who had clearly sustA1ned injuries.
He (P.W.4) was bleeding from the head and the nostrils. Whilst he
(P.W.3) was inside the hut, A5 and the other accused persons were
wA1ting at the door. When he (P.W.3) asked them what had happened to
P.W.4, two of the accused persons, namely A5 and A3, entered into the
hut. The rest of the accused, together with some other men who were
not before court, in this trial, remA1ned standing at the door. Al,
who was amongst those standing at the door, gave an order that he
(P.W.3) should be fastened. A2 and A5 then tied both hands of P.W.3
with a rope, fastened it to the one with which P.W.4 was tied up and
made him lie on the floor next to the latter.
confirmed the evidence of P.W.4 that as they were lying on the floor
with their hands tied up, all the accused persons, together with some
other men who were not before court, in this trial, assaulted them
with plastic sjamboks. Eventually A2 and A5 went out of the hut. When
they later returned into the hut, A2 and A5 brought Phallang
(deceased) whose two hands were already fastened together with a
rope. P.W.3 also noticed that, as he was brought into the hut, the
deceased was bleeding from the head and one of his fingers was
broken. After the deceased had been made to lie down on the floor
next to P.W.3 and P.W.4, all the accused persons continued beating up
the three of them, as they had earlier done
P.W.4 and P.W.3.
evidence of P.W.3, he and his companions were detA1ned in Al's hut
for over a week. They were assaulted every day, by the accused
persons, in the manner he had described to the court. They did not
eat any food or drink any water during the period of their detention
at Al's home. However, P.W.3 told the court that there was a time
when his wife brought him some food. He was unable to eat the food
because, in trying to do so, he vomited.
told the court that eventually Al escorted their wives to his (A1's)
home. The wives brought pots which they left in the hut in which he
(P.W.3) and the other detA1nees were kept, at A l's homestead. After
the wives had left, P.W.3 and P.W.4 were made to carry the pots to
the chief's place. The deceased did not carry a pot. He was too sick
to do so. P.W.3 further confirmed the evidence of P.W.4 that, on
their way to the chief's place, A4 hit the deceased a blow with a
stick on the kidney region. When he was thus assaulted with the
stick, the deceased fell to the ground and was, thereafter, unable to
walk. Al had to put the deceased on his (Al's) horse which he pulled
until they reached the chief's place.
chief's place, Al reported that he and the other accused had arrested
P.W.3 and the other detainees for stealing his sheep whose meat they
had cooked with the pots they were carrying. As P.W.3 and the other
detA1nees had clearly sustA1ned severe injuries, the chief refused to
receive them. Instead, Al and his
were ordered by the chief to first take the detainees to a doctor for
medical treatment. However, Al again loaded the deceased on his horse
which he pulled away from the chief's place. He and his party
returned P.W.3 and the other detainees to the hut in which they had
been kept, at his (A l's) home. According to P.W.3, the ropes were
then removed from their hands. They however, spent the night in their
detention hut, at A l's home.
morning of the following day, Al told P.W.3 and the other detainees
to leave his place because their wives had paid for them. With some
difficulty P.W.3 and the other detainees started walking to their
respective homes, in the village. Before P.W.3 could reach his home,
the police vehicle arrived. He and the other detainees were
transported in the police vehicle to Paray Hospital where they were
all admitted in hospital. P.W.3 told the court that he and the
deceased were staying in the same ward and his bed was, in fact next
to that of the deceased. He confirmed the evidence of P.W.4 that
whilst they were admitted, in hospital, the deceased passed away.
Thereafter, he (P.W.3) and P.W.4 were eventually discharged from the
hospital when they returned home.
Mokaeane testified as P.W.1 and told the court that he lived at
Semenanyane, in the district of Thaba-Tseka. He was illiterate. P.W.2
was his father and the deceased his own elder brother. He knew the
accused persons who also lived at Semenanyane.
to P.W.1, one day in December 1993 he was called by his headman,
Sckautu. He did go to the headman's place where he found Al already
there. Shortly after P.W.l's arrival at the headman's place, his
father (P.W.2) also came there. In the presence of Al and P.W.2, the
headman informed him (P.W.1) that A1 had a complaint against him. Al
then explained that he had information from his herdboy that P.W.1
had raided his cattle post from where he stole sheep. Although he
(P.W. 1) denied to have stolen his sheep, Al asked the headman to
release P.W. I to him so that he could take, and confront, him
(P.W.1) with his herdboy, at the cattle post. The headman did not
agree with that. He, instead, instructed A 1 to go with P.W. 1 to the
senior chief, Masefothafotha. However, Al handcuffed P.W.1 and took
him to his (Al's) home where he (P.W.1) spent the night.
event, in the morning of the following day, Al did escort P.W.1 to
chieftainess Masefothafotha's place. He was accompanied by P.W.2,
Jeke, Hlobola and some other men whose names P.W.1 did not know. On
arrival at chieftainess Masefothafotha's place, Al explained that he
had arrested P.W.1 on a suspicion that he had stolen his sheep.
According to him, P.W. 1 denied to have stolen the sheep, as alleged
by Al. However, the chieftainess acceded to Al's request that he
should be allowed to take P.W. 1 to the cattle post where he would
confront him with his (Al's) herdboy. The chieftainess further
detailed P.W.2, Jeke, Hlobola and the other men, who had assisted Al
to escort P.W.1 to the chief's place, to accompany Al and P.W.l to
the cattle post as her representatives.
instructed them that if A l's herdboy confirmed that P.W.1 had,
indeed, stolen the sheep, he (P.W.1) should be returned to her.
told the court that thereafter, they started their journey to Al's
cattle post. He was still handcuffed. They spent the night at a place
called Mohloling which was about 25 kilometres away (ind.),
presumably because it was already late in the afternoon when they
left the chieftainess' place. In the morning of the following day,
they left Mohloling and continued on their journey to Al's cattle
post. When they left Mohloling, Al tightened the handcuffs by
pressing them down on P.W. 1 's wrists with his booted foot. Shortly
after leaving Mohloling, the party was joined by A5, who also
tightened the handcuffs on P.W.l's wrists by
his (P.W.1's) hands on the ground and then pressing down the
handcuffs with his booted foot. P.W.1 told the court that after the
handcuffs had been further tightened on his wrists, his hands became
swollen. When he noticed that, P.W.2 pleaded with P.W.1 that, if he
knew anything about Al's sheep, he should disclose his knowledge to
Al and his party. Again, P.W.1 denied any knowledge about Al's sheep.
P.W.2 then said, that being the case, he was not satisfied with the
treatment given to him (P.W.1). He was, therefore, returning home.
told the court that, after his father had returned home, he was made
to lie down and his blanket pulled over his head. One person sat on
his head whilst another person was sitting on his legs. He was then
assaulted with sjamboks all over the body. Thereafter, the journey to
Al's cattle post continued.
eventually arrive at A l's cattle post where they found Al's herdboy.
The herdboy was not asked anything about P.W.1. However, P.W.1 was
made to lie down. Al and his party, again, assaulted him with
sjamboks, as they had done before. P.W. 1 and his assailants spent
that night at Al's cattle post.
morning of the following day, Al asked P.W.1 whether he knew where
the cattle post of one Beile was. When he replied in the affirmative,
P.W. 1 was told by A1 that he (P.W. 1) was going with them (Al and
his party) to Beile's cattle post because that was the place where he
(P.W. 1) had taken his (Al's) sheep to. Thereafter P.W. 1 (still
handcuffed) was escorted by Al and his party to Beile's cattle post.
However, on the way to the cattle post of Beile, P.W.l was made to
lie down when A1 and his party again sjambokked him, as they had done
after his father (P.W.2) had returned home. When he got up, P.W.1 was
unable to walk properly. He realised that he had sustained a deep
wound on his left side buttock. It was, therefore, with some
difficulty that P.W.1 managed to continue the journey to Beile's
cattle post of Beile, P.W.1 and A l's party found two herdboys, viz.
Hala-Hala and Mathibeli. Before he could be arrested Hala-Hala ran
away and was chased by Al and his party. In the process, Hala-Hala
threw himself over the cliffs and sustained injuries. He was then
arrested and brought back to the cattle post. Questioned about Al's
sheep, Hala-Hala said they were at the cattle post of one Khothatso
at a place called Khabele. He, Mathibeli and Khothatso's herdboys
stolen the sheep and taken them to Khothatso's cattle post, at
explanation of Hala-Hala, A1 removed the handcuffs from P.W. 1 's
hands. They were used to handcuff Hala-Hala together with Mathibeli.
Al and his party then escorted Hala-Hala, Mathibeli and P.W. 1 to
Khothatso's cattle post, at Khabele. On arrival at Khothatso's cattle
post they found that the sheep had already been taken to the veld for
grazing. There was nobody at the cattle post hut. The party was then
led by Hala-Hala, to the veld where Khothatso's sheep were grazing.
Al identified his missing sheep amongst Khothatso's flock of sheep.
They were driven back to Al's cattle post.
way to Al's cattle post, the party was joined by Hala-Hala's maternal
uncle who was travelling on horse back. He gave his horse to
Hala-Hala who was walking with difficulty as a result of the injuries
he had sustained when he fell over the cliffs. The journey to Al's
cattle post then continued. However, before reaching Al's cattle
post, Hala-Hala used the horse he had been riding to escape and run
away. Eventually the party did arrive at Al's cattle post where it
spent the night.
morning of the following day, P.W. 1 was handcuffed, together with
Mathibeli. A1 and his party escorted them back home. After they had
left Al's cattle post, on their way back home, A5, jeke and the other
man whose name P.W. 1 did not know, parted company saying they were
going via a place called
P.W. 1, Mathibeli, A1, Hlobola and Lingaka continued on their way
back home. They were driving the sheep which Al had identified as his
missing animals, at the cattle post of Khothatso.
told the court that, after A5 and the other men had parted company
saying they were going via Traeng, Mathibeli with whom he was
handcuffed, managed to free himself and run away. When he noticed
Mathibeli running away, P.W. 1 also ran away with the handcuffs still
on one of his wrists. He ran till he came to a certain Molisana's
cattle post where he spent the night. Early in the morning of the
following day, P.W.1 left Molisana's cattle post, on his way home.
However, on the way he felt unable to walk. He sat down in the veld
where he was found by herdboys from nearby cattle posts. By using a
safety pin, the herdboys managed to unlock the handcuffs and remove
them from his wrist. After removing them from his wrist, the herdboys
took possession of the handcuffs and left him (P.W.1) in the veld.
According to him, P.W.1 spent the night in the veld.
dawn, P.W.1 managed to walk, with same difficulty, till he reached a
place called Mothalaneng which was the home village of his paternal
aunt by the name of Majane. He reported to her what had happened to
him. He spent that day at the home of Majane who was treating him by
cleaning his injuries. On the following day, P.W.1 learned from
'Majane that she had received sad news about the death of Phallang,
the deceased in this case. He then proceeded home. On arrival at his
home village, P.W. 1 found a police vehicle by
was transported to Paray Hospital for medical treatment. At the
hospital he was not admitted. He was treated as an out-patient and
released to return home. That was in early January 1994.
month later, Al, A5 and A3 came to P.W.l's home and tried to arrest
him saying he had escaped after Al had arrested him for the theft of
his sheep. According to him, P.W. 1 refused to be arrested. However,
on the advice of his headman, Sekautu, P.W.1 went to Thaba-Tseka
police station to report the incident to the police who then arrested
him on the ground that Al had already lodged a complaint that he
suspected him of the theft of his (Al's) sheep. He (P.W.1) was
subsequently taken before the court and remanded in custody. He was
later released on bail. Eventually the bail was, however, cancelled
and P.W.l's bail deposit refunded to him. The reason therefor, was
because the case against him (P.W. 1) was removed from the roil after
Al had failed to turn up on the day it was to be prosecuted.
It is to
be borne in mind that the accused persons stand charged before this
court with the murder of the deceased and not the assault of P.W. 1
or, for that matter, any other person. On his own evidence, P.W.1 was
not present when the deceased was assaulted and the injuries that
brought about his death inflicted upon him. P.W. 1 was, therefore,
not in a position to tell the court whether or not the accused were
the persons who had assaulted the deceased and inflicted upon him the
injuries that brought about his death. To that extent, the evidence
of P.W. 1
my view, not of much assistance to the court, in this trial.
returning to his evidence, P.W.2 confirmed that, during December
1993, P.W. 1, who was his son and the younger brother of the
deceased, was told by Sekautu, the headman of his village, to report
himself at the headman's place. In fact, he too was required to
report at the headman's place, together with P.W.1. However, P.W. 1
left for the headman's place before him and he (P.W.2) followed
shortly afterwards. On arrival at the home of headman Sekautu, who
had since passed away, P.W.2 found him (Sekautu) in the company of
P.W.1, Al and a few other men. Al then reported that P.W.1 had stolen
his sheep and he was, therefore, fastening him. Despite the headman's
protest that P.W.1 should be fastened, A1 produced a pair of
handcuffs with which he proceeded to handcuff him (P.W.1). He (A1)
escorted P.W.1 away from the headman's place. As he did so, Al was in
the company of his son (A5) who had just come to the headman's place.
According to him, P.W.2 followed A1 and A5 as they escorted P.W. 1
away from the headman's place. They escorted P.W.1 from the headman's
place to the home of Al. After Al and A5 had taken P.W.1 to A1's
home, P.W.2 himself proceeded to his own home, in the village.
morning of the following day, A1 took P.W.1 to the Senior chief's
place. According to P.W.2, he accompanied them. At the Senior chief's
place they found Abdula Rantletse to whom Al reported that he had
arrested P.W. 1 for theft of his sheep. In the evidence of P.W.2, Al
was allowed by Abdula Rantletse
P.W. 1 to his (A 1) cattle post so that he could assist him in the
search for his missing sheep. He (P.W.2) again accompanied A1 and
P.W. 1 to the cattle post. He denied, however, the evidence of P.W.1
that he (P.W.2) and some other men accompanied him (P.W. 1) and A1 to
the cattle post as representatives of the senior chief. According to
P.W.2, he did so on his own simply because he wanted to verily if
P.W.1 had, indeed, stolen the sheep of Al.
confirmed that on the way to the cattle post they were joined by A5,
a certain Hlobola and another man whose name he later remembered as
Jeke. P.W.1 was assaulted by A1 and those men. They assaulted him
with sjamboks and tightened the handcuffs on his wrists by stepping
on them with booted feet. When he noticed the ill-treatment meted out
to him, P.W.2 pleaded with P.W.1 to tell A1 where his sheep were, if
he knew it. In reply P.W.1 denied any knowledge of the whereabouts of
the sheep. When Al and his party continued the assault on P.W. 1
despite the latter's denial that he had stolen the sheep, P.W.2
decided to part company with them and return home.
days later, when he returned home from his place of work where he had
been roofing a house, in the village of ha Matona, P.W.2 learned that
the deceased had been arrested and detained at the home of Al. He
then proceeded to Al's home where he found the deceased, P.W.3 and
P.W.4 fastened with ropes in one of his (Al's) huts. They were being
assaulted with sjamboks or plastic whips by A5, A4, A3, A2 and Al
(who, he learned, had just returned home, from
cuttle posts, on the afternoon of that same day). There was also one
Thabo Sekonyela who was not a co-accused, in this trial. P.W.2
noticed that the deceased was already bleeding from the head and
nostrils. When he enquired as to why those people were being arrested
and assaulted, Al told P.W.2 that they had stolen one of his sheep.
to P.W.2, the deceased and the other detainees spent several days at
A1's home where they were assaulted by all the accused persons daily.
On one occasion he (P.W.2) was standing outside his house, which was
just below the forecourt of Al's home, when he saw all the accused
persons and Thabo Sekonyela actually assaulting the deceased and the
other detainees, inside one of Al's huts whose door was left open.
be remembered that, in the evidence of P.W.4, the hut in which he and
the other detainees were kept, at the home of Al, was very small.
There were also hides kept in that hut. The inside was, therefore, so
congested that P.W.2 could not, in my view, have possibly seen all
the accused actually beating up the detainees. P.W.2 was, in all
probabilities, exaggerating when he said, from his house he could see
all the accused persons actually assaulting the detainees inside the
hut in which they were kept, at Al's home.
as it may, P.W.2 went on to testify that he eventually went to report
the incident to the senior chief, chieftainess Masefothafotha who,
already sent a report to the police and he (P.W.2) could return home.
P.W.2 did return home. On arrival at home he again went to Al's home
and found that the assault on the deceased and the other detainees,
by the accused persons, was continuing. He did not say anything to
them but simply went to his home, in the village.
told the court that one day, later on, the accused persons escorted
the deceased and the other detainees to chieftainess Masefothafotha's
place. He (P.W.2) accompanied them. On the way, he tried to talk to
the deceased who was, however, unable to speak. At one stage, whilst
they were on their way to the chief's place, A4 hit the deceased a
blow with a stick on the kidney region. When he was thus hit the blow
with the stick, the deceased fell to the ground. He (deceased) was
thereafter unable to walk. Al had to put him on his (Al's) horse
which he pulled until they reached the chief's place. On arrival at
the chief's place, chieftainess Masefothafotha refused to accept the
deceased and the other detainees on the ground that they had
sustained injuries. She ordered Al and his party to take them to the
hospital for medical treatment.
It may be
mentioned that in his evidence P.W.4 told the court that chieftainess
Masefothafotha had passed away long before the incidents of this
case. He had actually attended the funeral of chieftainess
Masefothafotha. The evidence of P.W.4 that, at the time the accused
persons escorted the deceased and the other detainees, chieftainess
Masefothafotha had already passed away, was, in
corroborated by P.W.3 who testified that when they arrived at the
chief's place they found Abdula Rantletse. They were, therefore,
attended to by Abdula and not Masefothafotha. If chieftainess
Masefothafotha were present when the accused persons arrived with the
deceased and the other detainees at the chief's place, as P.W.2
wished the court to believe, I find no reason why Abdula Rantletse
and not chieftainess Masefothafotha herself would attend to them. I
am prepared to accept, as the truth, the evidence of P.W.4,
corroborated by P.W.3 and reject, as false, the version of P.W.2, on
as it may, P.W.2 told the court that notwithstanding the order that
they should take the deceased and the other detainees to hospital for
medical treatment, A1 and the other accused persons loaded the
deceased on Al's horse and escorted him, together with the other
detainees, back to Al's home where they spent the night. On the
following day, Al released the deceased and the other detainees to go
to their respective homes, in the village. Shortly thereafter, the
police arrived in the village looking for the people who had
allegedly been assaulted. They were told by the headman (Sekautu)
that Al had released the deceased and oilier detainees to go to their
respective homes. According to him, P.W.2 accompanied the police to
his home where they found the deceased ill and lying in bed. Al the
request of the police officers, he assisted the deceased to the
police vehicle which was waiting outside the village. Shortly
thereafter, the other detainees were brought to the vehicle by the
police officers who transported them to Paray hospital. As it has
already been pointed out, earlier in the Judgment,
told the court that he had accompanied the deceased and his
companions when they wen; transported to the hospital by the police.
They sustained no additional injuries on the way.
evidence disclosed by the deposition of Tlalimothoana Khalanyane was
that he was illiterate and lived in the same area with all the
accused persons. He, therefore, knew them well. He also knew the
deceased in his life time. In his testimony, Tlalimothoana Khalanyane
remembered that one day he arrived home from his business to learn
that A1 had arrested and detained, at his (Al's) home P.W.1, P.W.3,
P.W.4 and the deceased, on a suspicion that they had stolen his
livestock. In fact, he was, later on, detailed by the headman
(Sekautu) to accompany the accused persons when they escorted the
detainees to the home of the senior chief's place. On the way to the
senior chief's place, Tlalimothoana Khalanyane did not notice that
any of the detainees had sustained injuries. Nor did he mention, in
his evidence, that, on the way to the senior chief's place, the
deceased was assaulted with a stick by A4. It was only when they were
already at the senior chief's place that he observed that the
detainees had sustained whip marks on their bodies, giving the
impression that they had been assaulted.
worth noting that in his evidence P.W.1 testified that he was not
amongst the people who had allegedly been arrested and detained by
the accused persons at the home of Al, as Tlalimothoana Khalanyane
wished the court to believe. At that stage, he had not yet returned
home from the cattle post where A1
him to look for his (Al's) missing sheep. The evidence of P.W.1 was
in that regard corroborated by that of P.W.2, P.W.3 and P.W.4. I am
inclined to reject, as false, the story of Tlalimothoana Khalanyane
and accept, as the truth, the version of P.W. 1 supported by P.W.2,
P.W.3 and P.W.4, on this point.
the correctness of his evidence that, on the instructions of the
headman (Sekautu), he accompanied the accused persons as they were
escorting the detainees to the senior chief's place, I must say I
find it rather strange that Tlalimothoana Khalanyane could have
failed to notice when the deceased was assaulted with a stick by A4,
or failed to observe that there were injuries sustained by the
detainees, particularly the deceased who, according to P.W.4, P.W.3,
P.W.2 and, indeed, the medical doctor who performed the autopsy on
his dead body, had sustained injuries on his face. Regard being had
to the fact that the incidents of this case took place in December
1993 but it was not until November 2000 that Tlalimothoana Khalanyane
gave his deposition, at the Magistrate Court, the possibility that
his memory might have failed him, in some of the details of this
case, could not, in my view, be ruled out.
evidence, disclosed by the deposition of D/Sgt Molelle, was to the
effect that he was based at Thaba-Tseka police station, in the
district of Thaba-Tseka, and the investigator in this case. In the
course of his investigations, he met the accused persons whom he
already regarded as suspects. After he had duly cautioned them, the
accused persons gave him explanations. Al and A3 also
him a green plastic whip and a brown whip (sephali), respectively. He
took possession of the whips which had since been in the police
custody. The whip:; had, however, disappeared from the police
exhibit-room and could not, therefore, be handed in as exhibits, in
their explanations, D/Sgt. Molelle gave the accused persons a charge
of murder, as aforesaid. He also charged them with assault with
intent to do grievous bodily harm, presumably in respect of P.W.1,
P.W.3 and P.W.4. As stated, earlier in the judgment, the charge of
assault with intent to do grievous bodily harm has not been preferred
against the accused persons, in this trial.
significant to bear in mind that in his evidence, P.W.3 told the
court that he, P.W.4, the deceased and a certain Khau Rantletse (who,
however, did not testily, in this trial) were arrested, fastened with
ropes, detained in one of Al's huts and assaulted with plastic whips
and sticks for several days by Al and his co-accused. In the evidence
of P.W.3, he and the other detainees neither ate nor drank anything
during the period of their detention in Al's hut. Eventually A1 and
his co-accused escorted him (P.W.3) and the other detainees to the
senior chief's place. On their way to the chief's place, A4 hit the
deceased a blow on the kidney region with a stick. When he was thus
hit the blow with the stick, the deceased fell to the ground and was
unable to walk. A1 had to put him on a horse which he (Al) pulled
till they arrived at the chief's place. The evidence of P.W.3, that
the deceased was assaulted in the manner he had described to the
by P.W.4, P.W.2, the doctor who medically treated him at Paray
Hospital and, indeed, the medical practitioner who performed the
autopsy on his (deceased's) dead body.
slated, earlier in the judgment, the accused persons closed their
case without adducing any evidence in defence. The court had,
therefore, only the crown evidence to rely upon for the determination
of this case. The evidence of P.W.1, corroborated by P.W.4 and,
indeed, P.W.2, that Al and all his co-accused were amongst the people
who had assaulted and inflicted upon the deceased the injuries thai
brought about his death remained, therefore, uncontradicted. That
being so, I find no good reasons why the evidence should not be
accepted as the truth. Assuming the correctness of my finding that
the deceased was assaulted by A1 and all his co-accused, it seems to
me reasonable to infer that in assaulting him, as they did, all the
accused persons actively associated themselves with commission of the
crime of assault on the deceased or acted in concert. On the well
known principle of common purpose, they were, therefore, all
criminally liable - Vide Vol. I of South African Criminal Law and
Procedure (3rd Ed.) by J.M. Burchell where at p. 307 the learned
author says, in part:
"where two or more people......actively associate in a joint
unlawful enterprise, each will, be responsible for specific criminal
conduct committed by one of their number........."
answer to the question I have earlier posted, viz. whether or not the
accused were the persons who had assaulted and inflicted upon the
deceased the injuries
brought about his death must, therefore, be in the affirmative.
question for the determination of the court is whether or not in
assaulting the deceased, as they did, the accused persons had the
requisite subjective intention to kill. In this regard, I have, for
reasons already stated, accepted the crown evidence that No.l
accused, acting in concert with his co-accused, had arrested the
deceased and three (3) other detainees whom they fastened with ropes
and detained in one of Al's huts where they were, for several days,
severely beaten up with plastic whips and sticks on the heads, backs
and buttocks. They did not eat or drink anything during their long
captivity, at the home of A1. Eventually, Al and his co-accused
escorted the deceased and the other detainees to the chief's place.
Whilst the accused were thus escorting their captives, one of them
(A4) hit the deceased a blow with a stick on the kidney region. When
he was thus hit the blow with the stick, the deceased fell to the
ground and was, (hereafter, unable to walk. Al had to put him on a
horse which he pulled until they arrived at the chief's place.
the back, the buttocks and the kidney region are all upper parts of a
human body and, therefore, vulnerable. Morever, a human being needs
food and water to survive. In assaulting the deceased on the upper
parts of his body and detaining him in A1's hut for several days with
nothing to eat or drink, as they did, the accused persons did, in my
finding, foresee the possibility of result death. They, nonetheless,
acted reckless of whether death did ensure or not.
the corectness of my finding, it must be accepted that in detaining
the deceased at A1's hut for several days with nothing to eat or
drink and assaulting him, in the manner they did, the accused persons
had the requisite subjective intention to kill, at least in the legal
sense (S. v. Mtsfaiza 1970 (3) S.A. 747 at p. 752B).
evidence has, in my view, established, beyond a reasonable doubt,
that the accused persons have committed the offence against which
they stand charged. Accordingly, they are all found guilty of murder,
convicted the accused persons of murder, the court is now enjoined,
by the provisions of section 296 of the Criminal Procedure and
Evidence Act, 1981,to determine the existence or otherwise of
extenuating circumstances i.e. any factors that lend to reduce the
moral blameworthiness of their act.
regard the court has found that there was no evidence indicating that
in killing the deceased, as they did, the accused persons had planned
or premeditated his death. Instead, they had intention in the legal
sense or dolus eventualis. The absence of premeditation of the
deceased's death is, in my finding, a factor tending to reduce the
moral blameworthiness of the accused
act. Secondly, subsection (2) of section 296 of the Criminal
Procedure and Evidence Act, Supra, provides:
"(2) In deciding whether or not there are any extenuating
circumstances, the High Court shall take into consideration the
standards of behaviour of an ordinary person of the class of the
community to which the accused belongs."
there is evidence that the accused persons live at Semenanyana, in
the mountain area of Lesotho. They are, therefore, members of the
community whose livelihood depends on livestock farming. Accused
no.l, 2 and 3 testified as D.W.I, D.W.2 and D.W.3 on the issue of
extenuating circumstances and told the court that the incident of
stock theft was very rampant in their area. According to the evidence
of D.W.I his sheep were, on several occasions, stolen by stock
thieves. His evidence was, in that regard, corroborated by D.W.3 and
D.W.2 according to whom, on the last occasion, 5 of his (D.W.2's)
sheep were also stolen together with D.W.1's sheep.
accused persons, who were all members of unti-stock theft association
in their area, were very upset with the theft of the animals of
accused nos. 1 and 2. In his evidence, D. W. 1 got information that
the deceased and the other people with whom he was admittedly
arrested and detained at his (D.W.l's) home were amongst the thieves
who had stolen the animals. It was, therefore, under their extreme
anger that No.1 accused and his co-accused acted as described by the
being had to the fact that they belonged to the community of
livestock fanners whose livelihood depended on their animals, I agree
that the accused persons wore extremely angered by the incident of
stock theft which was rampant in their area. It is a fact of life
that when angry people do things they would otherwise not do. This,
in my view, is a factor tending to reduce the moral blameworthiness
of the accused persons' act.
are, in my finding, extenuating circumstances in this case. The
proper verdict is, therefore, that the accused persons are guilty of
murder, with extenuating circumstances.
assessors agree with this finding.
mitigation of their punishment the court is informed that all the
accused persons have no record of previous convictions. They are,
therefore, regarded as first offenders. The court is also invited, by
the defence counsel, to take into consideration a number of factors.
They have been eloquently tabulated by the defence counsel. There is,
therefore, no need for me to go over them again. Suffice it to say
they have all been taken into account in accessing what
is appropriate for the accused persons.
has also taken into account that, in accordance with the Sesotho
custom, the relatives of the deceased are likely to sue the accused
persons before the civil courts for compensation or "to raise
the head." In all probabilities this court is only the first to
punish the accused persons. There is still another court, viz. the
civil court, which is yet to punish them. The court takes this into
account less the courts of law are accused of punishing a person
twice for the same offence.
all the factors taken into account, for their benefit, the court is
not prepared to turn a blind eye to the seriousness of the offence
with which the accused persons have been convicted. They have
unlawfully deprived another human being of his life. The life of a
human being is God-given and for thai reason sacred. Our law does not
permit people to unlawfully kill others. There is nothing wrong with
this law. It derives from the Divine Command "Thou shall not
kill." If they believed the information that the deceased was
the person responsible for the theft of their animals, the accused
persons ought to have taken him before the courts of law where he
would have been given a fair trial and punished. The accused persons
had no right to take the law into their own hands and severely beat
the deceased to death, as they did.
courts of law have, on numerous occasions, warned that they will take
view of people who unlawfully kill others. This warning seems to be
going unheeded. There arc still too many murder cases brought before
the courts of law in this Kingdom. There is, therefore, the need to
impose a deterrent sentence. A sentence thai will serve as a lesson
to the accused persons and people of their mind, that courts of law
will not tolerate a repetition of the kind of behaviour against which
the accused persons have been convicted.
say I find it embarrassing to have to sentence Al and A4 both of whom
arc old men of over 70 years old. According to the evidence Al was
apparently the cause of all the trouble. On a suspicion that the
deceased and others were thieves he had them arrested and detained at
his home where they were mercilessly assaulted day and night for
several days with nothing to eat or drink. A sentence of 10 years
imprisonment for Al will meet the justice of this case. Following the
ordeal they had suffered at the home of Al, the deceased and the
other detainees were escorted by the accused persons to the chief's
place. The evidence showed that on the way to the chief's place, A4
hit the deceased a blow with a stick on the kidney region. The blow
was so savage that the deceased fell to the ground and was unable to
get up and walk. He had to be loaded on a horse which Al pulled until
they reached the chief's place. There was no apparent reason why A4
meted out such cruel treatment to the deceased. I would likewise
impose a sentence of 10 years imprisonment for A4. On the evidence,
A3 and A5 were very active whilst the deceased and the other
detainees were detained and brutally assaulted at the home of A1.
They kept on going out to round up and take
the detainees to the torture house at Al's home. A3 and A5 are each
sentenced to serve a term of 10 years imprisonment.
evidence indicates that A2 took part in the assault on the deceased
and the other captives where they were detained in one of Al's
houses. There is, however, no indication that he played any special
role which would make him deserve the same punishment as the one
imposed on the other four accused persons. I would, therefore,
sentence him to serve a term of six (6) years imprisonment.
up, the accused persons are sentenced as follows:
A1 - Ten
(10) years imprisonment
A2 - Six
(6) years imprisonment
A3 - Ten
(10) years imprisonment
A4 - Ten
(10) years imprisonment
A5 - Ten
(10) years imprisonment
: Mr. Molokoane
Defence : Mr. Mahlakeng
African Law (AfricanLII)
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Laws of South Africa (Legislation)
Lesotho Law (LesLII)
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