HIGH COURT OF LESOTHO
matter of :
by the Hon. Acting Mr. Jusctice M. Lehohla on the 15th day of
accused who are brothers stand charged with the crime of murder of
their uncle a 65 year old Isdora Letsoela committed on
or about 31st
May 1985 at Ha Letsoela in the Berea district. The charge sets out
that the accused in order to accomplish the killing
of the deceased
were acting in concert.
opening address the Crown stated that it would through evidence seek
to establish that the motive for the killing was a long
dispute over a tree plantation. Formal admissions on behalf of the
accused were made by Mr. Maqutu on 18th August 1987.
They are as
head injuries on the deceased;;
of those injuries with use of blunt force;
fact that deceased had been attended to in Leribe before being later
transferred to Queen Elizabeth 11 hospital Maseru before
fact that under schedule 9 of observations as to external
appearances in Ex"A" are listed
four injuries set out as follows:-
(left) pariental scalp (b) 3 cm (left) frontal
(left) temporal scalp,
(5) That at the time of death the injuries had been sutured;
(6) That deceased was aged about 65 years and was obese. Further that
others are not clear and are incomprehensible.
application of the public prosecutor who conducted the preliminary
examination the magistrate accepted the instant Exhibit
A then marked
"B". The allegation was that the medical practitioner who
had. performed the post-mortem examination had
since left the country
also accepted in that Court Exhibit "All" an admission form
drawn up by a doctor who admitted deceased when
he came to Maseru.
The admission of this document before this Court was strenuously
opposed by Mr. Maqutu for defence. At the end
of the day i.e. on 21st
August 1987 Mr. Mdhluli for the crown having failed after making a
diligent search to secure documents
which would facilitate the
tracing of this document to its author, submitted that he was not
going to seek any postponement to
enable him to conduct a further
search. Consequently Exh"A11" was ruled unusable before
it was further shown in the document Exhibit "A" which was
handed in that
"The whole of (left) pariental bone was separated from the rest
of the vault and there was a huge collection of blood under
no doubt in my mind that to achieve the results
in the paragraph immediately above savage or brutal force must have
remains therefore to determine in the light of evidence adduced on
both sides who brought about such results.
Moifo Letsoela testified on behalf of the Crown that accused 1 and
accused 2 are his uncles. They live in a village where
he is a
headman and therefore are his subjects. The deceased Isdora Letsoela
was also his uncle and subject. The witness knew of
between the two accused and deceased. The dispute was over tree
plantation. The actual dispute which resulted in a
fight that led to
deceased's death centred on a tree that had been grown in a donga.
The tree was in part of the land which deceased
had won in legal
battle against accused 2.
testified that deceased made a complainant to him; namely that the
tree that he had chopped had been removed without his knowledge
consent by accused 2,
P.W.1 detailed his personal messenger called Sefoboko P.W.2
accompanied by Letsie Molapo and deceased to find out whether
tree complained of had been in fact in the portion of the land where
deceased had won it in litigation.
went further to say he had in fact informed accused 2 in deceased's
presence that an inspection was to be held following the
lodged by the deceased. It may just serve purposes of clarity to
mention that accused 2 was involved in the legal dispute
question on behalf of a relative of his called Mphonyane who laid
claim to it by inheritance from her mother 'Maeliza.
further stated that Sefoboko came and made a report to him after a
long time and that deceased was absent when this report
After that report P.W.1 said he met accused 2 very late after all
and. everybody had made reports to him. He said he
never spoke to
accused 2. Instead he went to Ntsoaki Khetha's home after receiving
the report. On arrival there he was informed
that deceased had been
taken to hospital and later that he had died in hospital. Apart from
this dispute he knew of no disharmony
between accused 2 and the
deceased. With regard to relations between deceased and accused 1 the
witness said the two used to talk
to each other but was quick to
state that he was not always with any of these people involved. He
explained that the reason for
this was that they stayed in different
homes, though in the same village. He was not asked if he would have
known should relations
have not been as he stated. In any event I
noticed a veiled attempt on P.W.1's part not to commit himself about
any knowledge of
bad blood between the deceased and any of the
an attempt in cross-examining this witness to show that at the appeal
stage Mphonyane won the land in which the tree grew.
The witness said
he was not present so he knew nothing about the events at appeal.
However what I find important in this aspect
of the case is that at
the time of deceased's death
a Court's decision in his favour regarding the tree and the land in
which it grew.
said he told accused 2 the previous day that an inspection of the
area in dispute would be held the following day. He admitted
accused 2 came late after others had left for the plantation. He also
admitted that the man who accompanied P.W.2 to the plantation
Letsie Molapo who is not his subject. It happens to be a fact that
Letsie Molapo stayed at deceased's house because deceased
to this Letsie Molapo's sister, P.W.1 however regarded P.W.4 as
either a friend of the deceased or his employee. One
thing he knows
is that P.W.4 used to herd after deceased's animals. However at and
around the time in point he was no longer herding
if.P.W.4 at this time was working for deceased P.W.1 said "I
don't know but he was always there." In the light of
evidence that revealed that P.W.4 was related to deceased's wife a
different complexion is given to the strenuous attempt at
that he was just a lackey of the deceased.
further conceded that the correct procedure would have been for the
chief's messenger to go to the plantation accompanied
by the two
disputants i.e. deceased and accused 2. He also conceded that it was
unfortunate that P.W.2 left with deceased before
accused 2 came.
referred to a statement appearing on page 2 of the P.E. record
wherein he is recorded as having said
"I saw them on their arrival from the tree plantation and
accused 2 was the first to arrive. The messenger came later on and
reported that he had run away when there was a fight on the way back.
He said that the two accused were fighting against the deceased
Isdora Letsoela. Accused 2 made a report to me that he was
intervening when accused 1 fought the deceased."
admitted as true the statement he made in the magistrate's court and
further that events were then relatively more fresh at
the time in
his mind. He was emphatic though that accused 2 came late to him and.
was consequently told that others had left for
turn P.W.2 Sefoboko Sefoboko told the court that he is P.W.1's
subject, does nothing for a living but truly knows the two
well as the deceased. He did not know how deceased carried on with
the two accused.
1985 he was called to P.W.1's home through P.W.1's agent P.W.4
arrival at the chief's place P.W.2 was asked by P.W.1 to intervene
between deceased and accused 2 for they were disputing over
Thereupon P.W.2 went looking for accused 2 but did not find him at
his home. However he left the message with accused 2's
wife that he
and the man accompanying him i.e. P.W.4 Letsie were setting out for
the plantation. Then P.W.2 proceeded to tell the
court that he and
his company waited for a long time for the two accused but when these
did not arrive he, P.W.4 and deceased left.
On arrival at the
plantation P.W.2 saw a tree in a donga. This was
he had been detailed to inspect.
and his company returned. On their way-back home they met accused 2
whom P.W.2 told that he and his company were already
the plantation having waited for him to no avail before coming to the
plantation. Accused 2 proceeded on his way
to the plantation.
sometime P.W.2 while still walking home with his companions saw
accused 2 and his brother Makafane accused 1 catch up with
There and then accused 1 hit deceased at the back of the head and
felled him. Accused 2 hit the deceased too while the deceased
lying on the ground. P.W.2 says that when thus assaulted deceased had
not said anything to any of the accused. Referring to
of the two accused when they arrived and when they assaulted the
deceased P.W.2 said their eyes appeared furious.
He further testified
that both accused were using sticks to assault the deceased.
of intervention on behalf of the deceased was by. making verbal pleas
to the accused asking them why they were hitting
the deceased and
whether they didn't realise they were injuring him, P.W.2's pleas
were not heeded. Then he left in order to report
to the chief. Even
as he left the two accused were beating the deceased up. He further
said he didn't see P.W.4 when he left the
scene because he was
back later to the scene at around 10 a.m. or after. Deceased had
already been taken away then.
said he learnt of deceased's death afterwards. He never knew of any
quarrels between deceased and any of the accused. He had
of any of their blood or family ties. He never even knew of the
dispute between Mphonyane and deceased over the plantation.
adamant that neither he nor any of his companions was armed at the
time of the incident, that deceased didn't fight when
deceased was lying on the ground when he ran away and that he had not
said anything when the assault started till
he ran out of earshot of
cross-examination he said he was not aware that his mission required
him to reconcile the parties involved in the dispute.
In fact in
re-examination he said his was to go and inspect with the parties the
object around which the dispute revolved.
the time at which he and his companions went to the forest at about 9
a.m. while the time at which the fight took place
was about 10 or 11
plantation was estimated at about two miles from home. (The witness
pointed at the mountains in the Free State as the point
estimation of the distance in question). It was clear to me that at
this juncture proceedings had sunk into an area which
difficult to rely on namely the illusive estimation of an ordinary
Mosotho regarding time and distance. My own estimation
distance between the court room and the Caledon which divides it from
the mountains is two miles. The mountains are a good
fraction of this
distance away from
following questions put by the defence counsel will give a mere
glimpse of what I mean to illustrate:-
"If you did go to the plantation then you wouldn't be back from
there before an hour -? That's according to my estimation
as I view
this". "You must have gone there at eight not nine o'clock?
I believe you for I can't calculate the time."
much turns on this, though it would have been beneficial if there had
been some more clarity as to the times and distance.
However be that
as it may.
denied that it was deceased who struck accused 1 with a stick first.
He denied the suggestion that it was because he was not
truth that he chose to say deceased said nothing before and during
the fight. He denied that deceased was armed with
Magutu for the defence made reference to a medical report which the
crown admits was on its file though it does not admit its
Relying on this report Mr. Maqutu put to P.W.2 the question that
accused 1 was injured on the day of the fight and that
the form shows
he sustained an injury which had to be sutured. P.W.2 admitted that
this was a matter of surprise to him.
however pointed out that he did not witness the entire fight to its
close as he had to flee. It was strange though, that the
the report of the fight from accused 2 who left the scene much later
than P.W.2 yet P.W.2 says he never went anywhere
the chief's place. For that matter P.W.2 said he even ran to the
chief's place from the scene. The distance between the
chief 's place
and Ntsoaki's where the fight took place was estimated at between a
kilometre and a mile as the crow flies from
the court room to RLDF
quarters. It would seem to me that P.W.2 -is not truthful in
suggesting that despite the fact that he had
a good head start and
was running he was beaten to the chief's place by accused 2 who it
was not even suggested went there running.
P.W.2 must either have
gone to the chief's place via some other place or must have hidden
somewhere along the way to rest in order
to recompose himself from
the fright he received on seeing the fight break.
put to P.W.2 that parties to the fight were not silent and that P.W.2
must have heard deceased swear at the accused calling
"Lifolotsana" meaning abortions or slinks a term used in
Sesotho to. refer to a calf born dead; often born so prematurely.
readily conceded that the chief's place was about 300 to 400 yards
from the scene of the fight. Surprisingly this did not
recoil with any self-doubts despite that the estimation he gave of
the same distance was far much greater.
taken to task about why he ran away despite that there was no
question of danger posed by any of the accused to him. He
that he ran away to report to the chief what he had observed
befalling the deceased. He conceded that he took the shortest
to the chief's
amazing to relate he is reported to have come there much later than
accused 2. It may be worth noting though that despite
or conflict as to what P.W.1 said at PE. and in this Court on the
question of who between accused 2 and P.W.2 arrived
first to P.W.1
the latter was not taken to task. The conflict having been
established defence counsel found it fitting in his address
court to say the only conclusion to reach having considered this
conflict is that P.W.1 had been got at by the family of
It would have been wise to put to P.W.1 this conclusion in order to
give him an opportunity to admit it or deny it.
I think it would be
rash to regard as valid a conclusion reached in circumstances set out
in defence counsel's submission in the
light of P.W.1's otherwise
straight forward evidence, not tainted by any wisp of bias or
deliberate attempt to mislead the court.
cross-examination P.W.2 was adamant that as they were walking
deceased was hit and he fell and that accused 2 joined in the
belabouring that ensued. He gives as the reason of his insistence on
the accuracy of his narrative the fact that he was there and
these events occur in his presence. He insists that his intervention
was confined to verbal pleas to the accused to stop
question put: "Letsie also did nothing -? I didn't see what he
did" he replied. Further it was put to him "You
have seen what Letsie claims to have done if you were present when
deceased was hit -? I didn't see what Letsie did."
says at Magistrate's Court: Accused 2 joined the assault while
deceased was still on his feet and staggering before
he fell -? I
didn't see that," "Accused 2 intervened and stopped the
fight and did not assault the deceased -? No one
were both fighting."
insisted that he saw accused 1 hit the ' -deceased several times. He
however denies that the hitting was effected several
times before the
deceased fell. His narrative is "I saw him hit deceased once and
he fell". He said the stick used by
accused 1 to hit deceased
was the timber stick yellow and brown in colour. He denied that
accused 1 used the iron rod of about
2½ feet in length.
question - "That stick which is about a metre long belongs to
accused 2 -? It was carried by accused 1" - he replied.
he was not certain if accused 2 was carrying the reinforced stick,
re-examination he explained that he left the scene when deceased fell
and was being belaboured.
Richard Letsoela testified to his knowledge of quarrels between
deceased and accused's parents over the plantation. He testified
the disputed plantation between deceased and accused 2 was awarded to
deceased. He denied conspiring with anybody to deceive
Otherwise the balance of his evidence was no more then hearsay.
Letsie Molapo testified that before 31st May 1985 he stayed at
deceased's place. He grew up there as deceased is his brother-in-law.
day in question he had been ordered by P.W.1 to go and call P.W.2
with whom he came along. He had been with deceased's company
when the two of them went to P.W.1's place. Then at about 6 am, they
set out for the plantation to inspect the source of
complaint. He explained that this was after sunrise.
reference to the 1985 Legal Diary showing times of sunrise and sunset
at Johannesburg in standard time of South Africa shows
that the sun
rose only at 6.46 am, on 31st May 1985. In respect of Ha Letsoela one
would make an allowance of plus or minus two
minutes for the sunrise
on that day.
said that he and deceased and P.W.2 came to the plantation and saw
that one tree had been cut and further testified that none
accused was present when this inspection was going on. After
ascertaining the facts in the plantation they went back home.
they were near Ntsoaki's home the two accused caught up with them.
accused 1 who was on horseback dismounted, drew a sword and came
towards the deceased. He explained that the object that accused
held was shiny and sharp. He said the deceased was at the time
bending trying to tie his shoe. Accused 1 came rushing to him
without saying anything started beating deceased with
the right ear. Accused 2 mounted a horse and immediately dismounted
it and rushed towards deseased armed With a timber
stick and hit
deceased with it while the latter tried to stand up. He said accused
2 then pulled a sword from under his blanket
and struck deceased with
it on the head and later under the chin. He said at this time P.W.2
had already run away as he fled at
the stage when accused 1 rushed at
the deceased. He supports P.W,2's evidence to the effect that P.W.2's
of words to wit: Fellows what are you doing
killing the man I am walking with," and further to the extent
that none of the
accused heeded that oral intervention. He testified
that the beating took place for a long time that he said he was not
estimate and that he tried to intervene by throwing stones at
the accused but was surprised and disturbed by someone who came from
behind and threw a stone at him forcing him thus to betake himself
from that spot to another from which he no longer threw any
but waited and watched.
cross-examination he conceded that the length of time spent by
accused belabouring the deceased could not have been less than
quarters of an hour.
evidence in chief he explained that after the blow received by
deceased from accused when the former was trying to rise he
tried to rise again. He further stated that deceased was not carrying
anything with which to ward off the blows delivered
by the two
accused. He said he knew the timber stick and that it belongs to
accused 2 and that he saw him use it at the material
time on 31st May
respect to P.W.2 it was stated by P.W.4 that he was carrying a twig.
He denied any knowledge of the cable stick. He further
deceased was carrying it at all. He was shown half length of a
fencing rod commonly referred to as a dropper used in
fences. This was wrapped in masking tape. P.W.4 said he never saw it
on the day of the events.
that deceased directed the word "Sefolotsana" to the
accused. He went so far as to say he didn't know what it
very strange thing indeed coming from a man who is reputed to have
been herding after live stock for a long time. It is
even if he lived in a rural society which adhered firmly to the
motto: See no evil say no evil and hear no evil the
utterance of the
word sefolotsana would escape P.W.4's ears, or his knowledge of the
object with which that word is associated.
testified further that after the accused stopped beating the deceased
they left him there lying on the ground while he went
to report to
the chief. He then went looking for a vehicle which was later used
for conveying the deceased to Hlotse hospital.
The deceased was still
alive then, P.W.4 saw the injuries on the deceased. They consisted of
a wound behind the ear another on
top of the head, others on chin and
left thigh. Deceased was not talking when conveyed to Hlotse and
later to Queen Elizabeth 11
Hospital in Maseru by ambulance
accompanied all the while by P.W.4.'" To P.W,4's observation
deceased was in the same condition
on arrival at Maseru as he had
been when he came to Hlotse.
cross-examination he said the swords used by the two accused were
about 2½ feet long. That they were shiny and that
sword was wrapped in black tape at the handle. The rest of its body
was also sharp. As for accused 2's he said he could
not see its
handle. He said the belabouring with these swords on deceased lasted
a long time. The time was estimated at about 45
minutes being the
time from which Court started at' 9.30 am. to 10.15.am. being the
point in time at which P.W.4 gave the foregoing
reply. He however
said ,he. could not estimate the time and further said he has not
been conscious of the passage of time since
the start of his evidence
to the moment in point.
Counsel put to him the question:
"Had they spent all that time the head where they were
concentrating their blows would have been mangled -? I am not the one
who was. assaulting" he replied. "This whole assault with
swords is a figment of your imagination. It is improbable -?
not imagination. I saw it done in my presence." "For the
time you estimated the deceased was being hit non-stop
-? I had no
watch I don't know how many minutes it took.""They hit him
with these swords so many times that it was hard
to count -? Yes".
"On a fallen man -? Yes" "Using words-? Yes" "If
what you say is correct you would
see many wounds -? I found four
wounds. "Only 4 yet the man was hit innumerable times -? Yes".
The Court asked at this stage:
"Didn't it surprise you that they were only 4 despite the many
blows delivered to inflict them -? There were some on the ribs
conceded that he was suggesting there were more wounds than he had
referred to page 7 of the P.E. record and shown that he had said
nothing about the wounds he had mentioned at the magistrate's
At P.E. he had referred to the following wounds:-
over the left eye
over the middle of the head
on the lower lip
other wound on the right thigh.
he was surprised that the doctor's findings revealed that injuries
were consistent with use of blunt force.
the accused's story put through their counsel that deceased looked
towards accused 1 and said "I won a case against
Ralipoli who has died, I don't see what they being Lifolotsana think
they can dispute over a plantation with me."
He denied that
accused 1 thereupon asked what deceased was saying. He further denied
that at that point deceased rushed towards
accused 1 and hit him with
a cable stick on the forehead. He denied that accused 1 hit deceased
with the iron rod. He conceded
that he used stones but qualified his
answer by saying he only used stones at the time the accused were
assaulting the deceased.
He denied accused 2's version
P.W.4 threw a stone which missed accused 2 such that he dismounted
from the horse with the result that P.W.4 ran away. He further
that it was immediately-after he had run to the hillock 30 paces away
that accused 2 intervened the deceased and that it
was then that
accused 's version that he assaulted deceased in self-defence and
that accused 2 intervened He denied P.W,1's statement
that accused 2
reached him before P.W.2 did.
he had earlier said they left for the plantation at sunrise he later
said the sun rose when he and the deceased and P.W.2
plantation. He explained that they had to go early to the plantation
because it is far away - a distance of between
Ha Thamae and PMU.
estimated at about 6 km.
from the fact that P.W.4's story seems to be highly exaggerated as to
the length of time spent by the accused assaulting the
does not sound credible as to its reference to the use of swords by
the accused on deceased. It is also questionable
why it was only when
asked by court whether the stone thrown by the stranger who forced
him to betake himself a distance away hit
him, he said it hit him
between the shoulders. One wonders why at the time he mentioned this
particular incident he did not say
the man hit him with stone instead
of confining himself to a general statement implying that the man
threw that stone in his direction.
Detective Trooper Leuta told the court that he was involved in the
investigation of this case and that he arrested accused
1 at Maputsoe
in connection with deceased's murder. Accused 1 gave him the iron rod
exhibit 1 and said it had been used in the
fight with the deceased.
He arrested him on 3/6/85. When P.W.5 met accused 1 on 2/6/85 accused
1 showed him an injury he said he
had sustained at the fight with
deceased. This injury was on the head. P.W.5 made no other
observation besides the injury he was
cross-examination P.W.5 conceded that he saw accused 1 on 31/5/85 and
gave him a form with which to see a doctor. The form
shows the time
18.00 hours as the time when accused 1 was attended to at Maluti
Hospital at Mapoteng.
however pointed out as strange that accused 1 should have sought
assistance of Mapoteng police station instead of the Maputsoe
station which is nearer not only to his home but to the scene of
events. Stranger still was the fact that accused 1 said
policeman who issued the form to him that deceased was still at home
and that he never mentioned that deceased had sustained
any injuries at all during the fight.
was P.W.5's evidence that "nothing of what he (accused) said
made me suspect that the deceased was in a bad way."
Sgt. Mohlaka testified that he knows both accused 2 following a
report he had received earlier.
P.W.6 having warned accused 2 of the nature and purpose of his visit
to him warned accused that he was a suspect in the
matter of Isdora
this explanation accused 2 handed over to this witness a brown and
yellow timber stick exhibit "2". It is P.W.6's
chief that accused 2 said when handing over to him this stick that
this was the stick he used on Letsoela. At this
point in P.W.6's
evidence the assessors had been asked to clear the court room but in
keeping with the ruling in David Petlane
vs Rex 1971 1973 LLR 85 it
was ruled that it does not amount to a confession when an accused
person says he assaulted or even killed
another because "it
contained no admission that he had killed anyone intentionally or
unlawfully" See Petlane (supra)
at 88 and 90.
further states that after arresting accused 2 he inter viewed P.W.4
Letsie Molapo and asked him what deceased was carrying
as he was
accompanying him on that day of the events. Thereupon P.W.4 indicated
to him a black cable stick consisting of several
strands of wire
measuring about one metre in length. The witness handed in this cable
marked exhibit "3" by this Court.
cross-examination P.W.6 denied the suggestion that accused 2 said
when this witness came there he said "produce the sword".
He further denied the allegation that accused 2 stated that he had no
sword, for as P.W.6 reasoned" I had never demanded any
further disagreed with the invitation by the defence counsel to the
effect that accused 2 would say he never
stick but rather handed to P.W.6 the stick being the one he carried
however insisted that despite his version to the contrary P.W.4
Letsie Molapo is the one who gave him the cable stick "Ex.3"
important aspect in the case cannot be ignored especially as it comes
from the Crown witness. My conclusion with respect to
it is that it
is patently clear that P.W.4 was not telling the truth when he said
deceased had nothing in his hands on 31/5/85.
further denied that it was his own conclusion that accused 2 said he
used "Ex.2" in the fight.
If I may
add at this point; the court's impression of this witness is that he
gave his evidence without bias or attempt to favour
either side. He
strikes me as truthful and therefore as a reliable witness. I have no
doubt that his evidence taken as a whole
is beyond reproach on its
close of the crown case accused 1 Makafane Letsoela gave sworn
testimony the purport of which was that while deceased died
31/5/85 the judgment which had been in his favour with respect to the
land in dispute was upset on appeal in 1986. He emphasises
the decision in 1986 there was no more appeal on the matter.
As to the
events surrounding deceased's death he said that he had been told by
accused 2 that there was going to be an inspection
of a tree cut by
deceased on 31/5/85. On the day in question he set out for the
at about 7.30 am. and met with deceased, P.W.2 and P.W.4 on their way
back from the plantation. He greeted them and passed
on. On his
arrival at the plantation he found accused 2 and asked what decision
had been reached by him and the others he had met
on his way to the
plantation. Accused 2 explained that he had met with those others on
their way back therefore he had not been
told of any decision.
then was no longer on horseback. His younger brother was though. The
two came along till they reached near Ntsoaki's home
where accused 1
heard deceased say "As for these lifolotsana, I'll show them a
thing for not even their father ever vanguished
me in a case, what do
they think they can do" whereupon accused I asked what deceased
was saying only to be there and then
hit by the deceased on the head
with the cable stick Exh."3".
was carrying "exhibit 1" the iron rod. He delivered two
blows to the deceased's head. He also says he hit him
the third time.
At this time he was being pelted with stones by P.W.4, he says. He
even reckons that one of those stones might
have hit the deceased. It
was while he was hitting the deceased with the iron rod that accused
2 came to intervene. He testified
that deceased fell while thus being
hit with the iron rod. As P.W.4 was continuing to throw stones at
accused 1 accused 2 stopped
accused 1 from attacking P.W.4.
says he did not hit deceased while lying on the ground. He further
says deceased rose but was
yet he fell again. He pointed out that P.W.4 was not telling the
truth when he said he was using a sword to assault the
also pointed out that accused 2 never at all hit the deceased.
deceased had fallen accused 1 says he took his horse and rode home
from where he went to Kolojane where he hoped to find
report to about his fight with Isdora. He however did not find any
soldiers there whereupon he reported to the chairman
village. A letter was issued to him and taken to the police station
where another was issued to be taken by him to
where his injury was attended to by a doctor. The form he was given
by the police to take to the doctor was handed
in and marked Exh."B".
that he handed the iron rod to the police after his arrest.
cross-examination he said he knew deceased to be a very shrewd man.
He testified that he detested his shrewdness. He regarded
old enough to be his father. Accused 1 said he is illiterate. He
further admitted that he was stronger than the deceased.
that he disliked the deceased but his ways. He thought deceased was
cunning. He regarded deceased's ways with intense
says he was informed at night the previous day that there was to be
an inspection of the plantation.
admitted meeting deceased, P.W.4 and P.W.2 on their way back from the
however denied knowing that P.W.2 was the chief's representative. He
said he never formed any opinion that the three had been
plantation or that they had anything to do with it. All he thought
was that they were on some errand of their own unknown
However he conceded that he expected that they might have been to the
plantation. He did not ask them though if they had
been for according
to him he thought messengers were yet to be detailed to come to the
to the plantation where he found accused2. His. younger brother told
him that those people had done the inspecting on their
own. He was
not involved because he too when he came there those people had
already come back from the plantation. He and accused
2 who was on
horseback proceeded along the way going home and intending to go and
see P.W.1 but when they caught up with deceased's
insulted him and his younger brother.
says the offensive words were uttered in a loud voice by the deceased
facing him. When he inquired what deceased was saying
then inflicted the blow with the cable stick "Exh."3"
on his head. Then the fight started. P.W.4 began
throwing stones at
whether P.W.4 threw the stones before accused1 reacted to the
offensive utterances by deceased he said "At the time he
delivered the blow." He said P.W.4 was about 3 paces away when
he started throwing stones at him.
concedes that he was confronted by two people from two angles and
that consequently his attention was divided between the two
deceased and P.W.4. He further stated that deceased missed him but
hit his blanket when P.W.4 was throwing stones at him.
Because he had
the iron rod in his hand he used it to belabour the deceased with it.
He however did not count the number of times
the iron rod hit
deceased. He said he beat the deceased twice before he fell down; and
that after he fell he said "I beat
him for 3rd or 4th time. I
don't know for he was fighting back". Asked how deceased could
have fought back when he had fallen,
accused said "I beat him
twice while he was in the standing position."
does not deny belabouring the deceased while the latter was on the
ground. He said he did not count the number of times
him. He remembers that accused 2 intervened. He conceded that he did
not remember the number of times he hit deceased,
while on the ground
because he was besides himself with rage.
he continued hitting the man lying on the ground and whether he could
in the circumstances regard him as a danger to him
he replied "He
appeared to be wanting to rise again."
whether he had no compassion for a man who was not only a relative
but old enough to be his father when beating him so ruthlessly
accused said the deceased was not his father's equal and that he was
was pointed out to him that bones were found to have been broken and
deceased's jaw separated from the skull, accused said
he would not
admit causing that type of injury and suggested that the man who was
throwing stones might be responsible for it.
however admitted that he could have caused the serious head injuries
found on the deceased.
strange that accused 1 should suggest at this stage of the
proceedings that P.W.4 hit deceased with a stone while the deceased
was lying down yet at no stage whatsoever in his defence was it put
to P.W.4 that he is partly responsible for injuries caused
deceased. This suggestion is rejected as devoid of all truth.
accused 1 painted a very pathetic picture of the events at this point
when he was under cross-examination. He said that P.W.4
with a stone when he had already been separated from the deceased by
accused 2 but realising that this answer makes
it appear as if the
hitting by Letsie occurred when he (accused 1) was no longer on the
scene he sought to explain it away by saying
"this took place
for a short time."
"At the time you say Letsie threw stones you allege you had
stopped hitting deceased -? He threw stones when we were
Did he beat you -? He missed me. All the time yet he was so close -?
I was dodging. Dodging stones and belabouring at
the same time -?
I did not
inflict more than 3 injuries. How did you manage to dodge stones and
beat up deceased at once -? I did".
admitted that within the short time he alleges the fight took place
results were brutal and effective.
unable to give a reasonable explanation for the fact that instead of
deceased's venom being directed at accused 2 who was
concerned in the disputed land it should be directed at someone who
hadn't anything to do with it.
version of accused 2 Manuel Letsoela as to the fight is to all
intents and purposes similar to that of accused 1. He told the
that when he and accused 1 caught up with deceased and company
deceased said "what do these stinks (lifolotsana) think
do when I have vanquished their father." Then accused 1 asked
him what he was saying. But before he could even finish
deceased had inflicted a blow on accused 1's head with "Exh.3".
Then accused 2's horse shied. As he corrected
its course accused 2
was confronted with a stone which he dodged and he dismounted amidst
a number of stones thrown at him by P.W.4.
He approached P.W.4 who
ran away. Then he came to separate accused 1 from deceased who had
the arrest accused 2 says on arrival from Ficksburg he found a
policeman who was to arrest him in the company of P.W.4.
the policemen asked "where are the swords and invited the chief
to go along with them to accused 2's place.
cross-examination he said he saw deceased hit accused 1 with a stick
and that at the time he accused 2 was still on horseback.
throwing stones at him as a result of which he dismounted and chased
after him. Regard being had to the fact that P.W.4.
these stones in order to relieve deceased who was hard pressed by
accused 1, it is difficult to understand how as
accused 2 put it
"There were many stones thrown at me by Letsie." It is also
difficult to see how if indeed accused 2's
efforts were directed at
intervening in order to separate accused 1 from the deceased P.W.4
could be relentlessly throwing stones
at him (accused 2).
difficult to see how accused 2 hoped to effect his intervention in
the face of the following :
"As soon as you had ducked from the stones you started chasing
P.W.4 -? I was not chasing him but was going towards him. Was
greet him -? To ask him why he was throwing stones at people who were
fighting. You were going to confront him with that
-? Yes. He was
then concentrating on you -? Yes, When he was running away -? I then
turned to intervene between accused 1 and deceased."
coping stone to his interest in the encounter accused 2 said he did
not observe any injuries on the deceased after separating
deceased. Asked why he didn't observe the injuries he said it was
because he was intervening and thereafter he went
chief's place to report. Indeed he went so far is to say that when he
left the deceased the latter was in a sitting position.
says deceased was lying on the ground.
authority in Hoffman's South African Law of Evidence 3rd Edition at
page 461 for the view that
"In certain circumstances however the making of a false
statement may throw an unfavourable light upon a fact previously
neutral, which can become an item of corroborative evidence,"
Broadhurst vs Rex 1964 AC. at 457 the following words appear and they
are appropriate in the instant case.
"........save in one respect, a case in which an accused gives
untruthful evidence is not different from one in which he gives
evidence at all. In either case the burden remains on the prosecution
to prove the guilt of the accused. But if on the proved
inferences may be drawn about the accused's. conduct or state of
mind, his untruthfullness is a factor which the jury
take into account as strengthening the inference of guilt ...."
is understandable that accused 1 should naturally adopt an attitude
of a protective brother towards accused 2 by shielding
him from the
commission of the offence charged, and allot to himself the entire
blame it defies all logic that accused 2 should
in his untruths
contradict even accused 1.
submissions made by both counsel and concessions by the crown that
there might have been provocation offered by the deceased
1 coupled with the undeniable fact on evidence that deceased
carrying the cable stick with which he struck accused 1 on the head I
have no difficulty in finding that though provoked accused
the bounds of self-defence by a very great margin indeed to the
extent that he kept on hitting a man who was already
on the ground
lying there and helpless.
is found guilty of culpable homicide.
accused 2 I have shown that his version of the events cannot
sincerely overcome P.W.6's version that he admitted having used
timber stick on the deceased. As pointed out by the Crown the
evidence of P.W.4. was tainted with exaggerations and downright
The same cannot be said of the evidence of P.W.2. The events which he
witnessed before fleeing have a ring of truth in them.
He said that
after the deceased had been beaten by accused 1 and had fallen on the
ground accused 2 Joined in the assault, P.W.2
was not shaken in this
aspect of his evidence that associated accused 2 directly with the
vicious assault on the deceased.
Maqutu argued that accused 2 be given benefit of doubt. But Malan
J.A,'s words in R vs Mlambo 1957(4) SA. 727 A.D. at 738 are
appropriate to the effect that .
"An accused's claim to the benefit of a doubt when it may be
said to exist must not derive from speculation but must rest
reasonable and solid foundation created either by positive evidence
or gathered from reasonable inferences which are not
with, or out weighed by, the proved facts of the case."
I do not
think that accused 2's claim to benefit of doubt is Justified.
also found guilty of culpable homicide.
is sentenced to 4 years' imprisonment.
is sentenced to 4 years' imprisonment or M4000 of which half is
suspended for 3 years on condition that he is not convicted
crime involving violence committed during the period of the
Crown : Mr. Mdhluli
Defence: Mr. Maqutu.
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