CRI/T/19/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

VS

TSELISO
MONA KHOPISO MONA

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice M Lehohla on the 15th day, of May,
1987

The two
accused appearing before this Court are charged in two counts.

In count 1 the indictment charges that :

"the accused are guilty of the crime of murder in that upon or
about the 21st day of October 1984 and at or near Ha Mosifa
in the
district of Outhing the said accused one or other or both of them and
acting in concert did unlawfully and intentionally
kill

1. 'Mapokoane
   Solane

   
   

2. .'Mamahaila
   Tsoeute

   
   

3. 'Mamatatane
   Qmane and

   
   

4. 'Makhalema
   Monese.

   
   

In count 11 it charges that :

"the accused are guilty of the crime of assault with intent to
murder in that upon or about the 21st day of October 1984 and
at or
near Ha Mosifa in the district of Quthing the said accused, one or
other or both of them acting in concert, did unlawfully
and
intentionally assault 'Makhotsang Tsoeute by hitting her with sticks
on- the head and thereby inflicting'multiple wounds and
hitting her
with the same on the left arm and stabbing her with a knife on the
nose with intention of killing her,"

The
underlined words were inserted following an unopposed application by
the crown for an amendment of the

2

indictment
in this Court.

The oral
evidence of 7 crown witnesses was heard. The witnesses appear in the
following order :-

P.W.2: 'Manepo Sepele

P.W.3: 'Mathabiso Tsoeute

P W.9: Chawene Solane P.W.11: 'Makhotsang Tsoeute

P.W.13: Mohaila Tsoeute

P.W.10: Lebotho Sejakhosi

P.W.12: Mahlalele Hlalele

It was
found desirable and convenient to stick to the numbering of witnesses
as. reflected in the Preparatory-Examination. record.
..

The
evidence of P.W.1, P.W.4, P.W.5, P.W.7, P.W.8, P.W.14, P.W.15,
P.W.16, P.W.17 and P.W.18 was admitted on behalf of the accused
by
their counsel Mr. T. Mda. That of P.W,6 was neither called nor
admitted. P.W.10's evidence was adduced at the instance of defence

counsel who sought to have certain matters clarified by this witness.
The position of P.W.2 in this respect is not different from
that of
P.W.10. save that, she did give evidence in her examination in chief
lasting hardly half a minute. Her evidence in chief
was that 4
deceased people and the- two accused were on good terms in the
village, that she never heard of any feud between them
and finally
that they used to visit one another.

Under
cross-examination P.W.2 stated that she knew accused's father called
Molefe Mona. Strictly speaking it emerged that Molefe
Mona is the
father of accused 1 and paternal uncle of accused 2 whose father is
the younger brother of Molefe Mona.

Her
evidence showed that Molefe Mona died in September

3

1984 and
that he had been ill for some considerable length of time i.e. about
a year before he died though he was never taken to
hospital nor sent
for medical treatment anywhere. She attended the funeral but
testifies that she does not know what happened there.
As far as she
is concerned nothing unusual or untoward happened at that funeral.

Adopting
a positive line of questioning towards her Mr, Mda put the following
questions at the end of each her answers appear :
-

"Don't you remember a certain Nthabiseng. confessing to people
gathered at the funeral that she should be pardoned for she
and
others were responsible for the death (i.e. of Molefe) - ? I don't Do
you know that Nthabiseng was taken to Makaloli Mosifa
(a chief) to
repeat the confession- ? I don't 3ut this was general knowledge -? I
was not there. I don't know. At the time of the
removal of the
mourning cloth (about a month later) you didn't hear that Molefe's
grave had been dug up -? I never. But this happened
in the village
where you lived -? I know nothing,"

P.W.3
'Mathabiso Tsoeute gave equally brief evidence in her examination in
chief. She testified that she saw the accused fight 'Mamohaila.
and
that the accused were not drunk. Further that they had never had a
quarrel with' 'Mamohaila prior to that day. On the contrary
they used
to live peacefully with the deceased 'Mamohaila.

In much
the same way as the evidence of P.W.10 and P.W.2 at P.E. the evidence
of this witness at P.E. had been admitted save that
she was called to
make certain clarifications for the benefit of the defence.

Under
cross-examination she said that she knew Molefe

4

who died
in September 1984 and that she attended his funeral. As far as she
remembers there was nothing unusual that occurred at
that funeral
concerning Nthabiseng. She said she did not know that Nthabiseng was
taken to the chief's place immediately after
the funeral. She said
she would not know anything relating to the day of the removal of the
mourning cloth because around that
time she had gone to Qomoqomong.
She never heard that Molefe's grave had been dug up about a month
after he had been buried in
it. She also testified that. Nthabiseng's
home is at Ha Sejakhosi a day's journey by foot from Ha Mosifa the
witness's home.

P.W.9
Chawene Solane testified that he is the son of one of the four
deceased i.e. the first deceased in the indictment 'Mapokoane
Solane
in count 1. He testified that 'Mapokoane never had any differences or
quarrel with the accused before her death. F.W.9's
home is about 70
paces away from the home of the accused and he and they used, to
visit one another before the incident of his
mother's death. He never
heard any rumours in the village leading to his mother's death. He is
not at loggerheads with the accused
though.

Under
cross examination this witness did not yield anything either
with.respect to the said Nthabiseng's stunning behaviour and

confessions at the burial of Molefe

the
accused's close relative. He saw Nthabiseng at the burial. He never
heard her confessions.. He never knew that Molefe's grave
had -been
dug up. . At the time of the

removal
of the mourning cloth following Molefe's death he-was absent from his
village and had gone to Bolahla Kobo. He denied any
knowledge of any
of these peculiarities. In

5

fact he
went on to say he has never ever heard rumours of any kind about
anything in his life.!

P.W.11
'Makhotsang Tsoeute testified that accused 1 is her brother-in-law.
Accused 2 is the son of her husband's elder brother.
On the 21st
October 1984 she was at one Motalane's home where there was beer
drinking in Ha Sejakhosi village. When the accused
came there,
accused 1 started hitting her with a stick. She testified that none
of the accused was drunk during the hitting incident.,
She said she
never knew why they hit her nor did she hear from the grape vine why
they had assaulted her. The assaults were so
brutal that she passed
out and only came to three days afterwards in the Quthing Government
hospital. She said that the assaults
on her took place on a Sunday.
She remembers this because the accused were from Church when they
started assaulting her.

Cross-examined
by Mr, Mda on whether she was escorted with Nthabiseng to the Chief's
place (i.e. chieftainess 'Makololi D.W.3) by
accused 2 and one
Lichaba she denied this allegation. She testified that she knew
chieftainess 'Makaloli but was emphatic that
she was never escorted
to her place at all. She testified that she was present at Molefs's
funeral but she did not hear anything
alleged to have been said by
Nthabiseng there. In fact she said she didn't see Nthabiseng at all
at that funeral. She admitted
that P.W.12 'Mahlalele was present as
the beer drinking was held at her own house. She denied ever swearing
at the accused then
or at any time saying "your father is there
at the cliffs. There's nothing you can do to me." She denied
that accused
1 said to her at the time "So you confirm the fact
that you killed my father."

6

In fact
she said, she never talked to accused 1 since his return from the
mines. She said she did not know why the accused assaulted
her. To
the question "why did they assault you., were they drunk"
she said "No, they were from church. Accused 1
just came in and
assaulted me,"

"Did
you ask them why they assaulted you -? Accused 1 said that was not
the point (what I was saying). He said he wanted to
feature in the
Moeletsi oa Basotho (a local newspaper) and in the radio broadcasts".
"While in the house, you said in
the court a quo, Tlokotsi asked
if you are a witch. That is before the assault started -? I didn't
say so.

Were you
lying to the Magistrate - ? No But I did not say so. But the record
shows it clearly -? I don't remember if I said in that
court that
Tlokotsi asked if I was a witch. Do you remember if Tlokotsi at all
asked if you are a witch He was outside. I didn't
speak to him or he
to me. Are you related to Tlokotsi -? Yes How -? He is my elder
brother and we are on good terms,

What
about the accused -? Even with them we are on good terms. When did
you stop being on good terms with them -? When they assaulted
me I
realised for first time that they were not.

Did you
hear a rumour in the village that the death of accused's father was
brought about by witch-craft -? No, And that you also
were implicated
in the practice of witch­craft I have not heard that."
P.W.13 Mohaila Tsoeute an old man in his late sixties

7

after
being sworn was told by Mr. Thetsane for the crown that his evidence
had been admitted by the defence but that he should assist
the court
by clarifying some points. He accordingly told the court that accused
had never had a quarrel with Mamohaila one of the
deceased. He said
there was never a rumour about how deceased got to be killed He
testified that the accused are his grandsons
and that he never
inquired why the deceased were killed. He never heard tell why the
killings took place. He further stated that
on the day of the killing
the accused were not drunk.

Under
cross examination he stated that he did not inquire why the killings
took place because he had no such opportunity because
the accused had
already been arrested and he couldn't ask anybody in the village
about it. He knew Molefe the deceased for he was
his elder brother's
son. He was in charge of the programme at the funeral of Molefe i.e
Master of ceremony. He saw Nthabiseng as
well as P.W.11 'Makhotsang
at the funeral. He didn't hear her say anything after the funeral.
Asked whether he knew that Nthabiseng
is reputed to have said
something at that funeral he replied that he was away as he left the
day following that funeral. Before
leaving he had not heard anything
about Nthabiseng P.W.13 is not only one of the elders in the village
but a headman in it and
often acts on behalf of the chief. In that
capacity he got to hear on his return from where he had visited that
Nthabiseng, Makhotsang
and 'Malehlohonolo had been escorted to the
chief's place by Lichaba and accused 2= It was three weeks after his
return that he
received this information

The
rumour had it that Nthabiseng had been escorted .

8

there on
the clay of the funeral because she had boasted that she had killed
her grandfather Molefe, As far as this witness'3 information
went the
matter was taken up by the chief who referred it to a higher chief at
Sebapala who in turn referred it to the District
Chief.

On his
return to the village this witness arrived in Nthabiseng's absence
because she had gone to her marital home at Ha Sejakhosi.
P.W.13 was
present when Molefe Mona's family removed the mourning cloth. He
testified that he heard for the first time in this
Court that on that
day of the removal of the mourning cloth Molefe's grave had been dug
up.

Asked if
he heard that his grandsons had killed some people he replied that he
only heard of the killing of one person, namely Mamohaila,
He swore
that if the grave had been dup up he would have known and reported to
his chief. He further said his family don't actually
wear the
mourning cloth as such but signify the occasion by shaving off their
hair during the wearing and the removal thereof.
He never hears of
any complaints about witches in his village.

P.W.10
Lebotho Sejakhosi Letsie after being sworn was cross examined by Mr.
Mda, He stated that he is the chief of Ha Sejakhosi
His village is
adjacent to D.W.3 chieftaines Makaloli Mosifa's village. He somehow
remembers the occasion when Nthabiseng was brought
to him along with
'Makhbtsang P.W.11 after her father-in-law's burial. These were
brought to him by Lichaba and another. They were
brought to him
because he is their chief. They had been brought to him on the
instructions of D.W.3's the chieftainess of an adjacent
village. The
allegation was that they had killed

9

Molefe,
P.W.10 referred them to chieftainess 'Mantsebo Seeiso. This witness
did not know what their fate was. He did not attend
Molefe's funeral
either. He did not remember how many days after the funeral these
people came to him,

The last
witness for the crown was P.W.12 'Mahlalele Hlalele who swore that
she knows the accused before Court,, Her home is at.
Bolahla-Kobo
under Chief Sejakhosi, She remembers seeing accused 1 assault P.W.11
'Makhotsang. The accused came from Ha Mosifa
village - this is
different from her own village.

She had
seen the accused many times before 21st October 1984 and known their
names. She did not know the ......deceased(subject
matter of this
trial). 'Makhotsang i.e. P..W.11 's bome is at Ha Mosifa. On. the day
in question she had gone to a donga to relieve
nature. While at the
donga she heard a scream and immediately ran to her house from where
the scream seemed to emanate. The distance
between the point in the
donga and her house was estimated at about 500 paces. On coming into
view some 150 paces ahead of her
she saw accused 1 assaulting P.W.11
with a. stick. P.W.11 fell to the ground. Then accused 1 went away in
the direction of ' his
village which lies about 2 kilometres away
from P.W.12's village. The house near which the. assaults were taking
place is P.W.12's.
She had brewed beer there for some ten people.
Before she went to the donga the two accused were not present at her
house. She
only saw them when she returned from the donga.

P.W.12
saw blood on P.W.11 's eye and hand. She appeared to be dead. P.W.11
was carried,into P,W.12's house

10

and she
recovered the following day. When P.W.12 went to the donga P.W.11 was
in her house where she had left her. During the assault
on P.W.11.
accused 2 was merely following accused 1 keeping a distance of some
3½ paces behind him. She did not know why
accused 1 was
belabouring P.W.11.

Under
cross examination by Mr. Mda P.W.12 denied any knowledge of what had
transpired between accused 1 and P.W.11. She testified
that she
didn't know if any grudges existed between them. She said P.W.11
would not be telling the truth if she said before P.W.12
left for
the. donga accused 1 and 2 were already at her house for she would
have seen them if they were. She denied that Tlokotsi
was there
either before she left for the donga. She did not see him at any
stage for that matter.

She
denied that she was hiding something. She testified that she was not
withholding any information . from the Court and denied
the
suggestion that the reason for withholding information was that she
knew that Tlokotsi had come to P.W.11 and asked her if
she was a
witch.. Elaborating on her version on this point she said "I
would have heard those words if he had uttered them
or if I had been
present when he said them, But I did not see or hear him." She
further said before she went to the donga
beer had run out as it was
only a quantity of four gallons and she had brewed it for ten people
only. Many more came after it had
run out before she went to the
donga. Others were already leaving before she went to the donga. When
the accused arrived in her
absence there couldn't have been any beer
for them to drink.

Asked
how often she goes to Ha Sejakhosi, she said she

11

never
goes there and suggested that she is not used to that place and that
it is far away. Confronted with the fact that a place
hardly two
kilometres from her home is within walking distance as shown by
villagers from different places including that particular
village
from which P.W.11 had travelled from there to the witness's own home
she insisted that she is not used to it.

To the
suggestion that she would not have anything to do with that village
because it is haunted she replied that she hadn't heard
of anything
about it. She only got to know the accused because they attend an
Apostolic Church near the Anglican one which she
attends.

To the
questions that followed she replied as follows:-

"Do villagers from accused's place come to bury deceased people
in your village - ? Yes. Your villagers go to bury deceased
in
accused's village ? Yes.,

You too go to bury people dying in accused's village -? Yes".

She knew
of accused's 'father's' death in September 1984 but did not attend
the funeral because she had gone shopping which took
her from morning
till evening of that day.

Asked why
despite the fact that she goes to funerals in that village she
nonetheless said she never goes to that village she said
she was not
thinking of funerals.

D.W.1
Tseliso Mona gave sworn evidence in which he testified that his home
is at Ha Mosifa, He used to work in the mines in the
Republic of
South Africa. His father

12

fell ill
and died. His surname differs from that of his father's Molefe
Tsoeute because his father took as his surname accused's

grandfather's name. He attended his father's funeral. After his
father's funeral a woman called Nthabiseng said she and. others
had
killed his father.. Her story involved 'Makhotsang and Sankoela's
wife who owned that they did.

Then
accused 2 and P.W.9 Chawene escorted Nthabiseng to the chief's place.
He went along with them to the chief's place i.e. chieftainess

Makaloli Mosifa's place after they had been to chieftainess
'Masalomone Mosifa, It involved Nthabiseng, 'Makhotsang i.e, P.W.11

and Sankoela's wife. These three were referred to the Principal Chief
after they explained that they had killed Molefe with (herbs)
called
Qhoala, Poho-Tsehla and Letapisa. It was suggested that those
concerned would be told of the date of hearing and outcome
of the
matter. They waited but to date were not told.

On the
day of the removal of the mourning cloth at his father's home he
heard one Makakamela shouting and saying from Molefe's grave
where he
was standing "Bafokeng come and see a miracle." He and
others went and found that Molsfe's grave had been dug
out at the
position of the head to the coffin level.

He and
others went home to explain to Tsukutla who went to report to the
chief. Accused 1 and Lichaba went to Likolobeng to consult
a
witchdoctor who should divine or smell out those responsible for
digging out the grave.The witchdoctor said he wouldn't divine
the
obvious. He told

13

accused 1
and his companion that they knew who had killed accused 1's father
and admitted the fact. So by token of the same rule
the ones who
admitted the killing are the culprits.

On 21st
October 1984 accused 1 and 2 left for Ha Sejakhosi and came to
P.W.12's house. There and then P.W.11 said she didn't care
a tinker's
cuss; further that accused 1's father was in a cave and that accused
1 should go and fetch him.

This
struck him. as something akin to what he heard uttered some days ago
by 'Mapokoane, 'Mamohaila, 'Mamatatana and 'Makhalema.
Accused 2 then
called accused 1 who explained to him what P.W.11 had said. Accused 1
felt much

vexed by
this. He immediately hit P.W.11 with a stick. P.W.11 ran outside the
house. Accused 1 hit her again and she fell to the
ground. When she
rose from where she had. fallen and charged at accused 1 he hit her
again with a stick and. felled her. Accused
1 says he was very angry
because the case had not" proceeded against the killers of his
father and because the deceased in
this matter had said Bafokeng were
too many and. deserved slaughter he felt he should start by carrying
the battle to the death
to those who threatened to kill the Bafokeng.
He testified that he and accused 2 went to the homes of the various
deceased .. and
assaulted them. They started with assaulting P.W.11;
then went to 'Makhalema,then to 'Mapokoane, then to 'Mamatatana and
finally
to 'Mamohaila.

Accused 1
says during all this trail of assaults he was suffocating with anger
due to the fact that he had been

14

reminded
by P.W.11 that his father had died and these deceased including
P.W.11 were responsible, Because P.W.11 was brazening out
this
infuriating act accused 1 says he intended killing everyone of them.
He says he was sober when belabouring this women.

After the
assaults he went and burnt down 'Mamakhalema's house so that, and
these are his words, "even if she survived the
assaults she
should not live in that house."

He
further said he and accused 2 proceeded to 'Mamatatana's while others
were salvaging household goods from 'Mamakhalema' s burning
house,.
Accused 1 stabbed 'Mamakhalema with a knife. From there they went to
'Mapokoane and accused 1 stabbed her with a knife
too. Thereafter
they went to report to the police where they were kept in custody to
date. While in detention he went to make a
confession before a
magistrate at Quthing because he did not intend what he did but
because of anger. He got to know thereafter
that these people had
died. Accused 1 says he never went to school. All he did was to herd
after live-stock. He says today he feels
remorseful about what he did
to the victims of his assaults.

Prior to
this incident he says he never heard anything about witchcraft. He
only heard about witchcraft from these women.

Under
cross examination accused '1 said bis father had been ill just a week
before he died. When his father fell ill accused 1 was
at home but
did not take him to a doctor because he did not have money.
Consequently

15

he went
back to the mines only to come back after his death.

On the
day of the incident he had gone to Ha Sejakhosi for beer drinking. He
went to Motalane's house. He says he is used to Motalane
P.W.12's
husband and swears that P.W.12 is his cousin.

He and
Motalane do share-cropping. His father's things are even kept at
P.W.12's house. He is puzzled that P.W.12 should denounce
him and
suggest that she occasionally sees him on Sundays when he goes to
church in her village. He says that P.W.12 was there
when he arrived
at her house. He explains that he never attested to the fact that he
is related to P.W.12 in his examination in
chief because no question
prompted him in that regard. Faced with a question that he was merely
inventing the story that P.W.12
is his cousin he said P.W.12's father
Sekhonyana is the one who is his cousin and stated that P.W.12 is
disowning him merely to
hide the question of her involvement in his
father's death.

Accused 1
is adamant that P.W.11 provoked him by saying she was responsible for
his father's death. Asked about the role played
by the four deceased
women in the provocation he said they had provoked him the previous
day.

Although
the deceased women provoked him and made him feel angry with them he
denies that he deferred the assault on them till some
other day.
Asked why he assaulted them then his answer is very garbled and
herdly makes any sense at all. His anwer was "I
felt it was

16

useless
because 'Makhotsang had told me that." However rendered in the
vernacular it does seem that by this expression accused
meant that
since 'Makhotsang had repeated saying what the deceased had said then
he decided "come what may I am left with
no choice but to
assault them". He says he was certain that P.W.11 was referring
to the deceased when she threatened that
she and others were going to
harm the Bafokeng.

To the
following questions put to him accused 1 replied as follows:-

"You planned on the day they uttered the words that you would
carry out the assaults on 21st October 1984 -? No. Why didn't
you
carry any steps there and then -? I took steps for I took them to the
chief's place. The same words were repeated on the day
of removal of
the mourning cloth -? On that day the grave was dug up."

It seems
that the accused are related to all the deceased. It also appears
that none of the deceased was taken to the chief's place.
Accused 1
admits that the source of his assaults on the women was Nthabiseng
and says that he would have assaulted her too but
for the fact that
she had run away to Mohale's Hoek. He however says he does not
believe in witchcraft despite the fact that he
consults witch doctors
sometimes. His reason for not consulting medical doctors is that they
are too far away from his home. Accused
1 said he burnt
'Mamakhalema's house while she was in there without intending to kill
her, but rather to deprive her of her house.
Asked how he could
reconcile this statement with

17

the fact
that it would be impossible for anybody to come out alive from a
house burnt in that manner he was clearly in a cleft stick.

Asked by
Mr. assessor Molapo who among the deceased said Bafokeng you are too
many and have to be reduced he said "They all
said it".
Shown the rediculousness of what he wanted to portray to. the Court
he said 'Mamatatana had said that at his home.
Asked if she led them
in saying it so that these others just chimed in he replied that they
were saying it among themselves.

Asked why
he had the intelligence to go and hand himself over to the police
after the assaults but did not go to them when he discovered
that the
chiefs were delaying in treating of his grievance he would not give
any satisfactory reply save that he gave himself up
to the police
because he had done the act and decided to give himself up.

D.W.2
Khopiso Mona testified under oath that he is charged jointly with
accused 1 with the murder of the four deceased and the assault
with
intent to murder the fifth. He said he feels sorry about the
incidents but that he had the same sense of grievance as accused
1
against them. He was very angry on that day so he acted without
intention to harm for he was even from church then.

Under
cross examination he' stated that he associated himself with what
accused 1 said about the deaths and the assault. Asked why
he
assaulted the other women who did not offer any provocation on the
day in question he replied "They circulated this matter
and it
hurt us.

18

So we
decided to finish them up",

"If
the version is to be believed thai accused 1 assaulted 'Makhptsang
because she had said on that day of the incident that
she didn't care
and that they would continue reducing you Bafokeng, why were these
women assaulted -? They had said that the previous
day. On the day of
the incident they didn't say anything -? No. How did you feel when
'Makhotsang said those words -? I felt hurt.
Why did you not assault
her -? I did. you also took part in her assault -? Yes.

Where were "Mamakhalema 'Mamatatana 'Mamohaila and 'Mapokoane -?
At their homes.

So you
hunted down these other four: -? Yes. You beat them up and belaboured
them when you got to their places -? Yes. Were you
angry when
deceased said the words -? Yes. You didn't beat them up on the day
they provoked you. -? No.

Then you
managed to hold your anger when provoked by deceased but when they
said nothing you became provoked to the extent that
you assaulted
them to death -? They had. provoked us and they had increased in
their numbers ."

D.W.3
Makaloli Mosifa testified that she is headman of Ha Mosifa village.
The two accused are her subjects including the deceased.
She knew
Molefe the "father" of these accused. He was her subject as
well. When Molefe died she was at home but she did
not attend the

19

funeral
because she was ill.

After his
death and funeral she saw people living in that place arrive
escorting Nthabiseng, 'Makhotsang and Sankoela's wife. On
arrival
Nthabiseng spoke and said D.W.3 should plead for her pardon to
Nthabiseng's uncle Jobo for she was the one who had killed
her uncle
Molefe. D.W.3 sent Nthabiseng to a senior chief 'Mantolo Nkuebe the
following day. The group had spent the night at her
place. She never
knew what action chieftainess 'Mantolo took about the people she had
referred to her. She further testified that
she knew of the occasion
of the removal of mourning cloth in respect of Molefe's death.
However she did not attend the ritual because
she was not feeling
well.

She never
heard what happened at the grave yard on the day of the removal of
the mourning cloth. She knows Tsukutla as one of her
subjects. He
never brought to her a report that a grave had been dug up. She
learnt of the deaths of the four women from one Tsoeute.

On being
cross-examined she said it was only Nthabiseng who asked for pardon.
She as chieftainess even asked why others were brought
along and
Nthabiseng said she was in it with them. Asked if in her opinion or
from her observation Nthabiseng is normal she replied
"I am not
a doctor".

"But
she is your subject -? On that day she did not appear normal. Prior
to that day -? She was normal. Subsequent to that
-? She was normal.
On the day in question what is it she did to suggest her

20

being
abnormal -? She appeared to be wild and she was being handled. Where
were 'Mapokoane, 'Mamohaila, 'Mamatatane and 'Mamakhalema
-? No. they
were at their homes. Who was escorting these people to your place -?
Accused 2 and Mochini-Boy P.W.5 and many others
and Chawene Solane
P.W.9.

Did
'Makhotsang and Sankoela's wife confirm what Nthabiseng said "?No,
they denied it. Did accused 2 hear them deny -? Yes
he did. What was
his reaction to that -? Nothing, Were the names of 'Mapokoane,
'Mamatatane, 'Mamahaila and 'Mamakhalema mentioned
by Nthabiseng -?
No, Did you render no service to these people who came before you
looking for service -? I rendered them service
by making a letter
referring them to my senior chief." D.W.3 said that she would
have known if action had been taken regarding
her subjects by senior
chiefs in as much as she got to know that her senior chief was
brought by defence counsel to Maseru in connection
with the instant
trial. Nthabiseng did not say how she killed Molefe. She said when
asked how she killed Molefe Nthabiseng merely
continued saying that
she be pardoned. She testified that Molefe had been ill for about a
month. But he was already very lean.
As far as she could see he died
from illness occasioned by ordinary pains of life. She finally said
that she would deny any evidence
suggesting that Tsukutla ever told
her that Molefe's grave had been dug up. She also said that although

21

Nthabiseng
had been married off from her village as her father is her subject
she used to see her go past her village when going
shopping but since
the incident she has never seen her again.

With
reference to the evidence that was admitted as it appears in the
preparatory examination record it is important to note that
P.W.1
'Matiisang Monese stated that she is related to the deceased.
'Mamakhalema. On 21st October 1984 she was in 'Mamakhalema's
company
outside her home when both accused arrived and assaulted the deceased
with sticks.. After being taken into the house by
people who
responded to the alarm raised by P.W.1 when she ran away in
desperation from the alarming incident 'Mamakhalema was
again set to-
by the two accused. Accused 1 had the cheek, even at this stage to
inquire in mock surprise whether in the state
the deceased was
whether she was still alive. P.W.1 says she-was bleeding from the
wounds at the time.

As if
that was not disconcerting enough to be stopped there and then
accused 1 after swearing at deceased by calling her "satan"

and a- witch drew a knife and stabbed her whilst she was lying on the
ground. He also threatened Tlokotsi with violence when the
latter was
trying to put out the fire accused 1 had set to Mamakhalema's house
with the aid of matches obtained from accused 2
to whom it had been
made obvious what the matches were required for. Accused. 2 willingly
handed over the matches to accused 1
to. accomplish his purpose
despite the fact that 'Mamakhalema was in that house and completely
helpless and couldn't escape the
fire in order to preserve her life.

22

P.W.2
'Manepo Sepele also in her evidence that was not gainsaid explained
the horrifying incident which she observed as the accused
started
attacking 'Mamatatane with sticks after the deceased asked why they
seemed to be in such a hurry. They attacked P W 2 and
chased her away
so that she couldn't intervene in 'Mamatatane's behalf. Having
returned from the chase they came to the deceased
where they found
her fallen on her face. Accused 1 drew his knife and stabbed her
behind the right shoulder with it. The deceased
inquired of him:-
"Are you finishing me up completely?" and the two accused
left her there without the slightest compunction.

P.W.3
'Mathabiso Tsoeute likewise explained the occurrence of a grim act
executed on 'Mamahaila by the two accused with sticks.

As
reflected in the admitted depositions of P.W.8 Leona Solane,
'Majpotooane a lady of advanced years was also cruelly assaulted
by
the two accused with sticks. She later died from the injuries she had
sustained. The accused made confessions before the magistrate

Mapeshoane - Esquire. There is no dispute as to the contents of both
confessions. No force or undue influence was applied to induce
the
confessions.

Though
the medical evidence at P.E. was as well admitted it appears there is
some confusion as to whose the burnt body was between
the deceased
'Mamakhalema and 'Mapokoane. It may well be the confusion was brought
about by the identifying witnesses especially
when P.W.18 Dr.
Stalimach had so many dead bodies to

23

examine.
Evidence shows that the deceased whose house was burnt while she was
inside it is 'Mamakhalema yet in his report and evidence
at P.E.
P.W.18 referred to 'Mapokoane Solane's body as consisting of bone
particles and the ball of the thigh which was on the
ashes.

In his
address Mr. Thetsane for the crown submitted that matters were not
hotly disputed in this case. P.W.12 said she saw accused
1 assault
P.W.11. There seems hardly any reason to disbelieve her. Accused 2
said he himself also assaulted, P.W.11. This he said
under cross
examination. The charge alleges that he was acting in concert with
accused 1. It would appear that on the doctrine
of common purpose he
would hardly escape liability for this assault once it was proved
that he associated himself with the acts
of accused 1 even if he did
not. deliver any physical blows. See Jenk. Cent. 271 "Qui non
propulsat injuriam guando potest,
infert:-He who does not repel an
injury when he can, induces it," or 2 Inst. 146

"He who does not prevent what he can prevent, seems to commit
the thing."

Crown
evidence showed that on 21st October 1984 the witnesses saw the two
accused assault the deceased and P.W.11. They did not
know the cause
of the assault. Under cross examination they showed that they knew of
no dispute between the accused and any of
the deceased, except P.W.10
who said he had heard through grape vine that assaults had been
carried out because deceaseed had allegedly
killed Molefe the father
and uncle of the accused.

For all
her protestations to the contrary it became clear especially from
D.W.3's evidence that P.W.11 was

24

escorted
to the chief's place as one of those complained of having bewitched
Molefe. Mr, Thetsane very properly conceded this point.
Moreover Mr.
Mda had laid bare her untruthfulness when contrasting her evidence in
this Court and that in the court a quo regarding
the fact that she in
that court said Tlokotsi asked her whether she is a witch. A point
she strenuously denied in this Court. Her
assertions also that she
never went to accused's village showed that she is a very facile liar
for it turned out in evidence that
she went to funerals in that
village before. Equally astounding by its pointlessness is P.W.9
Chawene' s assertion that he never
hears rumours of any kind in his
life. As clearly indicated by Mr. Mda Chawene was apt to conceal
certain information because as
revealed by D.W.3 a witness whose
evidence is most worthy of credit and who was frank and did not
attempt to conceal anything was
positive that among those who had
escorted Nthabiseng, P.W.11 and Sankoela's wife to her place were not
only accused 2, P.W.5 but
Chawene P.W.9 as well.

As to the
crux of the matter it was submitted no reason could be found why the
accused assaulted the deceased and P.W.11. According
to the accused
the assault started at P.W.12's house where P..W.11 had uttered some
words.

The
others were assaulted on the allegation that they had said they had
caused the death of Molefe.

The
defence raised is not a defence as such but provocation which is a
plea in mitigation.

25

What
escapes one's understanding about the accused's reactions is the fact
that according to them the deceased had uttered the provocative
words
the previous day; yet they did not react there and then as would
become one who is said to have been stung to the quick,
but waited
for their anger to cool off only to be sparked off a day after by
P.W.11 who for that matter was not within the immediate
vicinity of
the deceased from which point it could be said they heard the
provocative words and at its extremest did nothing to
dissociate
themselves from their utterer.

Even if
the accused genuinely believed their "father11 had been killed
by some occult methods inexplicable by resort to any
conceivable
phenomena they should not have taken the law into their own hands
because they had already laid their complaints with
the lawful
authorities.

Mr.
Thetsane accordingly submitted that the intention of the accused was
to gratify their murderous and brutal instincts and lust.
And that if
it is true that they were threatened they would have reacted even as
the four women were uttering the provocative words
while seated, as
stated, under a tree.

He
invited the court to consider that the sole issue for determination
is whether the accused intended to kill. Such determination
can be
facilitated by consideration of the weapons used. In this case a
knife and sticks on defenceless women. Next the actual
portions of
the bodies against which injuries were inflicted. Medical evidence
has shown that 'Mapokoane Solane had suffered injury
inflicted with a
blunt instrument and that death

26

was due
to brain damage. The whole scalp had been torn to pieces. Many sites
of the skull had been laid bare with multiple lines
especially in the
occipital area. See EX."c" handed in on 9th December 1986.

The body
of 'Mamatatane revealed in examination that death was due to brain
damage due to assault with a blunt instrument. She had
3 lacerations
on back of the head and multiple skull fractures with (molil) pieces.

'Mamohaila
also suffered death from brain damage caused by use of a blunt
instrument. Although she had no skin laceration the doctor
described
her injury as a huge depression fracture underlying (R) fronto
pariental.

The
fourth specimen for examination is what the doctor referred to as
follows :-

"it can only be stated that there was presented to examination
the ash of a human being of an adult. Age not possible to give.
Nor
sex. Injuries and cause of death: Only parts recognised 2 x spine 2
pieces of skull and 2 pieces of bones of leg".

Mr.
Thetsane submitted that the degree of force can be gathered not only
from the injuries but also from the description by witnesses
who saw
the accused belabouring the deceased.

As for
the nature of injuries it was manifestly clear that the accused
intended killing their victims. A good many of the victims
died
instantly with the exception of the one who was burnt alive in the
house.

In reply
Mr. Mda submitted that accused be found guilty of culpable homicide
on the grounds that they had been provoked. He indicated
that the
defence did at no stage

27

contend
that the accused were intoxicated or insane.

Submitting
that the accused could not have committed these acts without cause if
indeed they were in their right state of mind.
Mr. Mda said it
behoves one to find out what their state of mind was; and accordingly
pointed out that the basis of their reaction
was laid down by D.W.3.
Once more this submission seems to me to be baseless. What is amazing
though is to observe practical aspects
of folie a denx finding
expression in real life (The underscored words mean "a delusion
shared by two emotionally associated
persons."

Mr. Mda
submitted that it does not necessarily mean that the accused were not
provoked that they did not react on the previous day.
I fail to
appreciate the relevance of provocation in Homicide cases is
concerned.

Arguing
in this vein it was submitted for the defence that the accused were
labouring under some resentment and that a keen sense
of grievance
was still lingering in their minds despite that they took no action.
They also feared that the women were going to
cause them some harm or
kill them. In response to this I would quote an appropriate legal
maxim i.e. "Qui non cadunt constantem
virum vani timores sunt
aestimandi - Those fears are to be esteemed vain which do not affect
a firm man."

Another
factor which I find completely bizarre in the accused's action is
that having been provoked by P.W.11 they should feel justified
in
attacking people who were not even near P.W.11. This is a strange
type of novelty

28

smacking
of what one might call provocation by proxy and ought not to be
entertained.

The
Criminal Law (Homicide Amendment) Proclamation 42 of 1959 section
3(1) b says "a person who does the act which causes death
in the
heat of passion caused by sudden provocation ....... and before there
is time for his passion to cool is guilty of culpable
homicide only.

The above
act, in line with the authorities that I have consulted, does not
excuse the sort of conduct that disguises itself as
provocation while
in actual fact such conduct denotes the idual accused's
predisposition to violence s peculiar fadish reaction
or out look to
happenings in life and worst of all any of his reactions based on or
motivated by his religious or superstitious
beliefs and idiosyncracy.

While it
might be argued that there was an element of suddenness in reaction
to p.W:11's provocative words it does not seem the
same would avail
in respect of the four deceased.

Section 4
of this proclamation makes reference to "provocation defined"
in the postil. It is not necessary to render its
definition for
purposes of this judgment. Moreso because clearly evidence has
established that P.W.11 denied any association with
'Manthabiseng in
the alleged killing of Molefe. It would not make sense to suggest
that it could be hardly a month after such denial
of a matter as
serious as ascribing someone's death to her P.W.11 could out of the
blue

29

brazen it
out to men armed with sticks that she had anything to do with their
relative's death.

Rex vs
Makhetheng Setai 1980(2) LLR. 359 at 378 is authority for the view
that "provocation does not reduce an intentional
killing to
culpable homicide".. Indeed the only inquiry to make upon a
charge of, murder is whether accused subjectively intended
to kill.
If he did then his act is murder. However should the intention to
kill be negatived by provocation then the right verdict
to return
would be that of culpable homicide.

In S.
Sigwahla 1967(4) SA. at 570 Holmes J.A. applying the meaning of
"intention to kill" to facts of the case before
him stated

"It is sufficient that the accused subjectively foresaw the
possibility of his act causing death

In Rex vs Ngcobo 1921 A.D. at 96 Innes C.J. said the terrible wounds

"....... showed a violence and a ferosity of purpose which would
naturally imply, if not a purpose to kill, certainly a determination

to do serious harm calculated to cause death, regardless of the
consequences. And such provocation as appellant did receive was

wholly insufficient to account for this determination".

Rex vs
Rai Manyangaga & others 1971 - 1973 LLR. 171 by Evans J. clearly
shows that belief in witchcraft cannot per s_e reduce
a homicide from
murder to culpable homicide.

In Rex vs
Butelezi 1925 A.D. at 169 Kot7ee J.A. said

"It is ........ well established that great provocation or
sudden uncontrollable passion may rebut the presumption of malice
or
an

30

intent to kill and reduce the killing from murder to manslaghter.
Thus, if a husband finds a man in the act of adultery with his
wife
and, acting on the impulse of the . moment kills one or both of
them,the provocation he received will render him liable for
the crime
of ..... culpable homicide......".....

...For
the circumstances rebut the presumption of malice, which is the
essential ingredient in the definition of murder. C/F Rex
vs Jolly &
Others 1923 A.D. at 180

to 190,
where Kotzee J.A. said

"in a case of homicide malice is presumed and it lies upon the
accused to establish by evidence ....... that the presumption

........ does not hold against him. by showing that it is a case of
excusable or justificable homicide."

See also
Mofokeng J's Criminal Law and Procedure through cases at 233 et seq.

For the
above reasons both accused are found guilty of the murders of
'Mapokoane Solane, 'Mamohaila Tsoeute, 'Mamatatane Qamane
and
'Mamakhalema Monese in count.1.

They are
convicted of the assault with intent to murder 'Makhotsang Tsoeute in
count 11.

ACTING

JUDGE.

15th May,
1987.

For the
Crown ; Mr. Thetsane

For the
Defence: Mr. T. Mda.

31

RULING ON
EXTENUATING CIRCUMSTANCES.

Section
296(1) of the Criminal Procedure and Evidence Act 1981 lays down that
"where the High Court convicts a person of murder,
it shall
state whether in its opinion there are any extenuating circumstances
and if it is of the opinion that there are such circumstances,
it may
specify them".

(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 the accused
belongs."

Submitting
his argument in an attempt to persuade the Court to find that there
are extenuating circumstances in the instant case
where both accused
have been convicted of the murder of four women Mr. Mda relied on Rex
vs Fundakubi 1948(3) SA. 810 at 815 where
Schreiner J.A. said

"........... In our view an extenuating circumstance ...........
is a fact associated with the crime which serves in the minds
of
reasonable men to diminish, morally albeit not legally, the degree of
the prisoner's guilt. The mentality of the accused may
furnish such a
fact. A mind, which though not deceased so as to provide evidence of
insanity in the legal sense, may be subject
to a delusion, or to some
erroneous belief or some defect, in circumstances which would make a
crime committed under its influence
less reprehensible or diabolical
then it would be in the case of a mind of normal condition. Such
delusion, erroneous belief or
defect would appear to us to be a fact
which may in proper cases be held to provide an extenuating
circumstance .....................".

Relying
on the above text Mr Mda submitted that the existence of extenuating
circumstances cannot be excluded by aggravating factors
such as
brutality, premeditation wickedness and callousness.

Re-iterating
this view Jacobs C.J. as he then was said

32

in Rex vs
Botso Mashaile and Others 1971-73 LLR. at page 164

"Nothing which influenced the accused's minds or emotions and
therefore their conduct can be ruled out even if it was unreasonable

for them to be so influenced. Nor must the brutality and callousness
of the deed be given men much weight and be allowed to automatically

exclude the possibility of extenuating circumstances."

It is
trite that the subjective view of the accused's conduct is of great
importance in determining the existence or otherwise of
extenuating
circumstances.

In
Fundakubi supra Schreiner J,A. at 815 went further krever to point
out that a belief in witchcraft may serve as a basis for finding
that
extenuating circumstances exists if among other things the victim
practiced witchcraft to grave harm.

It was
submitted on behalf of the accused that a basis exists for finding
that extenuating circumstances exist in their case. First
the death
of their "father" provided a basis for the accused's belief
that he had been bewitched. Secondly the subsequent
confession by
Nthabiseng in P.W.11's proveace that they and others caused Molefe's
death by some recondite means. Thirdly the re-iteration
by deceased
that they were going to illiminate all the Bafokeng. Fourthly the
provocative words by. P.W.11 which led to assaults
on her which
sparked off and flamed latent feelings of grievance against the
deceased resulting in their being battered to death,

I have
considered all the submissions made on behalf of the accused,
including the fact that they are men of humble background and
simple
minds.

33

Schreiner
J.A.supra makes reference to the fact that an accused in witchcraft
case is entitled to a finding that his belief constitutes
an
extenuating circumstance if his victim practiced witchcraft to grave
harm. In this case the accused were afforded an opportunity
to hear
some of their suspects deny that they had bewitched. Molefe and
caused his death by use of witchcraft. See page 12 of the
judgment
along with D.W.3's evidence.

In Rex vs
Rai Manyangaza 1971 -73 LLR at 175 in finding that extenuating
circumstances existed Evans J.as he then was took into
account that
"there had been drinking by all, but insufficient to support a
defence of intoxication in law."In the instant
case the element
of drink by accused was excluded by both of them and crown witnesses.

Finally
in Fundakubi supra at 819 it is stated that :

"But even within the class of witchcraft murders with which we
are dealing it should not be supposed that the existence of
a belief
in witchcraft must necessarily and in all cases be treated as an
effective extenuating circumstance"

I have
come to the conclusion that whatever extenuating circumstances may
exist do not serve to palliate the horror of this crime.
Henes I find
none in respect of either of

these
accused.

TSELISO
MONA will you say why death sentence should not be imposed on you
....? I did not do the act intentional I was pained by
the deceased
saying they had killed my father.

KHOPISO
MONA will you say why death sentence should not be imposed on
you....?

"I took long taking indifferent attitude towards the
provocation. If it was not for the words we would not have committed

the murder. I pray for lenient

34

sentence. My children I left with no one to look after them. Father
is aged. I am the only son. I ask for forgiveness.

In
respect of the assault with intent to murder in Count 11 each accused
is sentenced to three years' imprisonment.

In Count
1 Tseliso Mona in respect of the murders of 'Mapokoane Solane,
'Mamohaila Tsoeute, 'Mamatatane Qamane and 'Mamakhalema
Monese the
sentence of this Court is that you be removed from the place where
you are standing, taken in custody where on an appointed
day you will
hang by the neck until you are dead.

In count
1 you Khopiso Mona in respect of the murders of 'Mapokoane Solane,
'Mamohaila Tsoeute, 'Mamatatane Qamane and 'Mamakhalema
Monese, the
sentence of this Court is that you be removed from here to the place
of custody where on an appointed day you will
hang by the neck until
you are dead.

May God
have mercy on your souls.

My
assessor agrees with the findings.

ACTING

JUDGE.

22nd May,
1987.

For the
Crown : Mr. Thetsane

For the
Defence : Mr. T. Mda.