HIGH COURT OF LESOTHO
matter of :
MONA KHOPISO MONA
by the Hon. Acting Mr. Justice M Lehohla on the 15th day of May,
accused appearing before this Court are charged in two counts.
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
district of Quthing the said accused one or other or both of them and
acting in concert did unlawfully and intentionally
'Mamatatane Qamane and
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
near Ha Mosifa in the district of Outhing the said accused, one or
other or both of them acting in concert, did unlawfully
intentionally assault 'Makhotsang Tsoeute by hitting her with sticks
on the head and thereby inflicting multiple wounds and
with the same on the left arm and stabbing her with a knife on the
nose with intention of killing her,"
underlined words were inserted following an unopposed application by
the crown for an amendment of the
in this Court.
evidence of 7 crown witnesses was heard. The witnesses appear in the
following order :-
found desirable and convenient to stick to the numbering of witnesses
as reflected in the Preparatory
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
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
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
that they used to visit one another.
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.
evidence showed that Molefe Mona died in September
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.
a positive line of questioning towards her Mr. Mda put the following
questions at the end of each her answers appear :
you remember a certain Nthabiseng confessing to people gathered at
the funeral that she should be pardoned for she and
responsible for the death (i.e. of Molefe) - ? I don't
know that Nthabiseng was taken to 'Mekaloli Mosifa (a chief) to
repeat the confession - ? I don't.
was general knowledge - ? I was not there. I don't know.
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
happened in the village where you lived -? I know nothing."]
'Mathabiso Tsoeute gave equally brief evidence in her examination in
chief. She testified that she saw the accused fight 'Mamohaila.
that the accused were not drunk. Further that they had never had a
quarrel with 'Mamohaila prior to that day. On the contrary
to live peacefully with the deceased 'Mamohaila.
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.
cross-examination she said that she knew Molefe
in September 1984 and that she attended his funeral. As far as she
remembers there was nothing unusual that occurred at
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 P.W.9 Chawene
Solane testified that be is the som of one of
the four deceased i.e. the first deceased in the indictment
'Mapokoane Solane in
court 1. He testified that 'Mapokoane never had
any difference or quarrel with the accused before her death. P.W.9's
home is about
70 pace away from the home of the accused and he and
they used to visit one another before the incident of his mother's
He never heard any rumours in the village leading to his
mother's death. He is not at loggerheads with the accused though.
cross examination this witness did not yield anything either with
respect to the said Nthabiseng's stunning behaviour and
at the burial of Molefe the accused's close relative. He saw
Nthabiseng at the burial. He never heard her confessions.
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
went on to say he has never ever heard rumours of any kind about
anything in his life!
'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
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 grap vine why
they had assaulted her. The assaults were so brutal
that she passed
out and only came to three days afterwards in the Outhing 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.
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 'Makeloli but was emphatic that
she was never escorted
to her place at all. She testified that she was present at Molefe'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
1 said to her at the time
"So you confirm the fact that you killed my father."
she said she never talked to accused 1 since his return from the
mines. She said she did not know why the accused assaulted
the question "why did they assault you, were they drunk"
she said "No, they were from church. Accused 1
just came in and
"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
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.
lying to the Magistrate -? No But I did not say so.
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.
about the accused -? Even with them we are on good terms. When did
you stop being on good terms with them -? When they assaulted
realised for first time that they were not.
hear a rumour in the village that the death of accused's father was
brought about by witch-craft -? No, And that you also
in the practice of witch craft -? I have not heard that."
Mohaila Tsoeute an old man in his late sixties
being sworn was told by Mr. Thetsane for the crown that his evidence
had been admitted by the defence but that he should assist
by clarifying some points. He accordingly told the court that accused
had never had a quarrel with Mamohaile 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,
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
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
rumour had it that Nthabiseng had been escorted
the day of the funeral because she had boasted that she had killed
her grandfather Molefe. As far as this witness's information
matter was taken up by the chief who referred it to a higher chief at
Sebapala who in turn referred it to the District
return to the village this witness arrived in Nthabiseng's absence
because she had gone to her marital home at Ho Sejakhosi.
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
he heard that his grandsons had killed some people he replied that he
only heard of the killing of one person, namely Mamohaila.
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
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.
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 chieftainess 'Makaloli Mosifa's village. He somehow
remembers the occasion when Nthabiseng was
brought to him along with
'Makhotsang 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
P.W.10 referred them to chieftainess 'Mantsebo Seeiso. This witness
did not know what their fate was. He did not attend
either. He did not remember how many days after the funeral these
people came to him.
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
Chief Sejakhosi. She remembers seeing accused 1 assault P.W.11
'Makhotsang. The accused came from Ha Mosifa village - this
different from her own village.
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 home 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.
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
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
accused 2 was merely following accused 1 keeping a distance of some
3½ paces behind him. She did not know why
accused 1 was
cross examination by Mr. Mda P W.12 denied any knowledge of what had
transpired between accused 1 and P.W.11. She testified
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
denied that she was hiding something. She testified that she was not
withholding any information from the Court and denied the
that the reason for withholding information was that she knew that
Tlokotsi had come to P W.11 end 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.
often she goes to Ha Sejakhosi, she said she
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
kilometres from her home is within walking distance as shown by
villagers from different places including that particular
from which P W.11 had travelled from there to the witness's own home
she insisted that she is not used to it.
suggestion that she would not have anything to do with that village
because it is haunted she replied that she hadn't heard
about it. She only got to know the accused because they attend an
Apostolic Church near the Anglican one which she
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".
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.
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.
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
South Africa. His father
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
killed his father. Her story involved 'Makhotsang and Sankoela's wife
who owned that they did.
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. chiefteiness
Makaloli Mosifa's place after they had been to chieftainess
'Mesalomone 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)
Ohoala, Poho-Tsehla and Letapisa. It was suggested that those
concerned would be told of the date of hearing and outcome
matter. They waited but to date were not told.
day of the removal of the mourning cloth at his father's home he
heard one Makekamela shouting and saying from Molefe's grave
was standing "Bafokeng come and see a miracle." He and
others went and found that Molefe's grave had been dug
out at the
position of the head to the coffin level.
others went home to explain to Tsukutla who went to report to the
chief. Accused 1 and Lichaba went to Likolobeng to consult
witchdoctor who should divine or smell out those responsible for
digging out the grave. The witchdoctor said he wouldn't divine
obvious. He told
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.
October 1984 accused 1 and 2 left for Ha Sejakho; and came to
P.W.12's house. There and then P.W.11 said she didn't care
cuss; further that accused 1's father was in a cave and that accused
1 should go and fetch him.
struck him as something akin to what he heard uttered some days ago
by 'Mapokoane, 'Mamohaila, 'Mamatetane 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 end 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
then went to 'Makhalema, then to 'Mapokoane, then
to 'Mamatatana and finally to 'Mamohaila.
says during all this trail of assaults he was suffocating with anger
due to the fact that he had been
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
infuriating act accused 1 says he intended killing everyone of them.
He says he was sober when belabouring this women.
assaults he went and burnt down 'Mamakhalema's house so that, and
these are his words, "even if she survived the
should not live in that house."
further said he and accused 2 proceeded to 'Mamatatana's while others
were salvaging household goods from 'Mamakhalema's burning
Accused 1 stabbed 'Mamakhalema with a knife. Prom there they went to
'Mapokoane and accused 1 stabbed her with a knife too.
they went to report to the police where they were kept in custody to
date. While in detention he went to make a confession
magistrate at Quthing because he did not intend what he did but
because of anger. He got to know thereafter that these
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.
this incident he says he never heard anything about witchcraft. He
only heard about witchcraft from these women.
cross examination accused 1 said his 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.
back to the mines only to come back after his death.
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
husband and swears that P.W.12 is his cousin.
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
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
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
the deceased women provoked him and made him feel angry with them he
denies that he deferred the assault on them till some
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
because 'Makhotsang had told me that." However rendered in the
vernacular it does seem that by this expression accused
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.
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."
that the accused are related to all the deceased. It also appears
that none of the deceased was taken to the chief's place.
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 Mohele'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
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.
Mr. assessor Molapo who among the deceased said Bafokeng you are too
many and have to be reduced he said "They all
Shown the rediculouaness 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.
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
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.
Khopiso Mona testified under oath that he is charged jointly with
accused 1 with the murder of the four deceased and the assault
intent to murder the fifth. He said he feels sorry about the
incidents but that he had the same sense of grievance as accused
against them. He was very angry on that day so he acted without
intention to harm for he was even from church then.
cross examination he stated that he associated himself with what
accused 1 said about the deaths and the assault. Asked why
assaulted the other women who did not offer any provocation on the
day in question he replied "They circulated this matter
decided to finish them up",
"If the version is to be believed that accused 1 assaulted
'Makhotsang because she had said on that day of the incident that
didn't care and that they would continue reducing you Befokeng, why
were these women assaulted -? They had said that the previous
the day of the incident they didn't say anything -?
you feel when 'Maknotsang said those words -?
you not assault her -? I did.
took part in her assault -? Yes.
were 'Mamakhalema 'Mamatatana 'Mamohaila and 'Mapokoane -? At their
hunted down these other four -? Yes. You beat them up and belaboured
them when you got to their places -? Yes.
angry when deceased said the words -? Yes, You didn't beat them up on
the day they provoked you -? No.
managed to hold your anger when provoked by deceased but when they
said nothing you became provoked
extent that you assaulted them to death -? They hod provoked us and
they had increased in their numbers."
Makaloli Mosife testified that she is headman of Ha Mosifa village.
The two accused are her subjects including the deceased.
Molefe the "father"
accused. He was her subject as well. When Molefe died she was at home
but she did not attend the
because she was ill.
death and funeral she saw people living in that place arrive
escorting Nthabiseng, 'Makhotsang and Sankoela's wife. On
Nthabiseng spoke end said D.W.3 should plead for her pardon to
Nthabiseng's uncle Jobo for she was the one who had killed
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
heard what happened at the grave yard on the day of the removal of
the mourning cloth. She knows Tsukutla as one of her
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.
cross-examined she said it was only Nthabiseng who asked for pardon.
She as chieftainess even asked why others were brought
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
she is your subject -? On that day she did not appear normal.
that day -? She was normal. Subsequent to that -? She was normal On
the day in question what is it she did to suggest her
abnormal -? She appeared to be wild and she was being handled.
were 'Mapokoane, 'Mamohaila, 'Mamatatane and 'Mamekhalema -? No, they
were at their homes.
escorting these people to your place -?
and Mochini-Boy P.W.5 and many others andChawene Solane P.W.9.
'Makhotsang and Sankoela's wife confirm what Nthabiseng said -?No,
they denied it.
accused 2 hear them deny -? Yes he did.
his reaction to that ? Nothing, Were the names of 'Mapokoane,
'Mamatatane, 'Mamahailaand 'Mamakhalema mentioned by Nthabiseng
Did you render no service to these people who came before you looking
for service ? I rendered them service by making a letter
them to my senior chief."
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
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
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.
reference to the evidence that was admitted as it appears in the
preparatory examination record it is important to note that
'Matiisang Monese stated that she is related to the deceased
'Mamakhalema. On 21st October 1984 she was in 'Mamakhalema's
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.
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
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.
'Manepo Sepele also in her evidence that was not gainsaid explained
the horrifying incident which she observed as the accused
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.
'Mathabiso Tsoeute likewise explained the occurrence of a grim act
executed on 'Mamahaila by the two accused with sticks.
reflected in the admitted depositions of P.W.8 Leona Solane,
'Mapokoane a lady of advanced years was also cruelly assaulted by
two accused with sticks. She later died from the injuries she had
accused made confessions before the magistrate Mapeshoane - Esquire.
There is no dispute as to the contents of both confessions.
or undue influence was applied to induce the confessions.
the medical evidence at P.E. was as well admitted it appears there is
some confusion as to whose the burnt body was between
'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
Evidence shows that the deceased whose house was burnt while she was
inside it is 'Mamakhalema yet in his report and evidence
P.W.18 referred to 'Mapokoane Solane's body as consisting of bone
particles and the ball of the thigh which was on the
address Mr. Thetsane for the crown submitted that matters were not
hotly disputed in this case. P.W.12 said she saw accused
P.W.11. There seems hardly any reason to disbelieve her. Accused 2
said he himself also assaulted P.W.11. This he said
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 quando potest,
infert He who does not repel an
injury when he can, induces it." or 2 Insti 146
"He who does not prevent what he can prevent, seems to commit
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
to the chief's place as one of those complained of having bewitched
Molefe, Mr, Thetsane very properly conceded this point.
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
Chewene'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 end 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
others were assaulted on the allegation that they had said they had
caused the death of Molefe.
defence raised is not a defence as such but provocation which is a
plea in mitigation.
escapes one's understanding about the accused's reactions is the fact
that according to them the deceased had uttered the provocative
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,
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
the deceased from which point it could be said they heard the
provocative words and at its extremest did nothing to
themselves from their utterer.
the accused genuinely believed their "father" had been
killed by some occult methods inexplicable by resort to
conceivable phenomena they should not have taken the law into their
own hands because they had already laid their complaints
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.
invited the court to consider that the sole issue for determination
is whether the accused intended to kill. Such determination
facilitated by consideration of the weapons used. In this case a
knife and sticks on defenceless women. Next the actual
the bodies against which injuries were inflicted. Medical
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.
of 'Mamatatane revealed in examination that death was due to brain
damage due to assault with a blunt instrument. She had
on back of the head and multiple skull fractures with (molil) pieces.
also suffered death from brain damage caused by use of a blunt
instrument. Although she had no skin laceration the doctor
her injury as a huge depression fracture underlying (R) fronto
fourth specimen for examination is what the doctor referred to as
"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.
sex. Injuries and cause of death: Only parts recognised 2 x spine 2
pieces of skull and 2 pieces of bones of leg".
Thetsane submitted that the degree of force can be gathered not only
from the injuries but also from the description by witnesses
the accused belabouring the deceased.
the nature of injuries it was manifestly clear that the accused
intended killing their victims. A good many of the victims
instantly with the exception of the one who was burnt alive in the
Mr. Mda submitted that accused be found guilty of culpable homicide
on the grounds that they had been provoked. He indicated
defence did at no stage
that the accused were intoxicated or insane.
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
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 or provocation in Homicide cases is
in this vein it was submitted for the defence that the accused were
labouring under some resentment and that a keen sense
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 constentem
virum vani timores aunt
aestimandi - Those fears are to be esteemed vain which do not affect
a firm man."
factor which I find completely bizarre in the accused's action is
that having been provoked by P.W.11 they should feel justified
attacking people who were not even near P.W.11, This is a strange
type of novelty
of what one might call provocation by proxy and ought not to be
Criminal Law (Homicide Amendment) Proclamation 42 of 1959 section
3(1) b says "a person who does the act which causes death
heat of passion caused
provocation....... and before there is time for his passion to cool
is guilty of culpable homicide only.
act, in line with the authorities that I have consulted, does not
excuse the sort of conduct that disguises itself as
in actual fact such conduct denotes the individual accused's
predisposition to violence, his 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
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.
of this proclamation makes reference to "provocation defined"
in the postil. It is not necessary to render its
purposes of this judgment. Moreso because clearly evidence has
established that P.W.11 denied any association with
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
out to men armed with sticks that she had anything to do with their
Makhetheng Setai 1980(2) LLR. 359 at 378 is authority for the view
that "provocation does not reduce an intentional
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.
Sigwahla 1967(4) SA. at 570 Holmes J.A. applying the meaning of
"intention to kill" to facts of the case before
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".
Rai Manyangaga & others 1971 - 1973 LLR. 171 by Evans J. clearly
shows that belief in witchcraft cannot per se reduce
a homicide from
murder to culpable homicide.
In Rex vs
Butelezi 1925 A.D. at 169 Kotzee J A. said
"It is ....... well established that great provocation or
sudden uncontrollable passion may rebut the presumption of malice
intent to kill and reduce the killing from murder to menslaghter.
Thus, if a husband finds a man in the act of adultery with his
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...." ...
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."
Mofokeng J's Criminal Law and Procedure through cases at 233 et seq.
above reasons both accused are found guilty of the murders of
'Mapokoane Solane, 'Mamohaila Tsoeute, 'Mamatatane Qamane
'Mamakhalema Monese in count 1. They are convicted of the assault
with intent to murder 'Makhotsang Tsoeute in count 11.
Crown : Mr. Thetsane
Defence: Mr. T. Mda.
296(1) of the Criminal Procedure and Evidence Act 1981 lays down that
"where the High Court convicts a person of murder,
state whether in its opinion there are any extenuating circumstances
and if it is of the opinion that there are such circumstances,
deciding whether or not there are any extenuating circumstances, the
High Court shall take into consideration the standards
of an ordinary prison of the class of the community the accused
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 was 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
on the above text Mr Mda submitted that the existence of extenuating
circumstances cannot be excluded by aggravating factors
brutality, premeditation wickedness and callousness.
this view Jacobs C.J, as he then was said
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."
trite that the subjective view of the accused's conduct is of great
importance in determining the existence or otherwise of
Fundakubi supra Schreiner J.A. at 815 went further however to point
out that a belief in witchcraft may serve as a basis for
extenuating circumstances exists if among other things the victim
practiced witchcraft to grave harm.
submitted on behalf of the accused that a basis exists for finding
that extenuating circumstances exist in their case. First
of their "father" provided a basis for the accused's belief
that he had been bewitched. Secondly the subsequent
Nthabiseng in P.W.11's difference that they and others caused
Molefe's death by some recondite means. Thirdly the
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
considered all the submissions made on behalf of the accused,
including the fact that they are men of humble background and
J.A.supra makes reference to the fact that an accused in witchcraft
case is entitled to a finding that his belief constitutes
extenuating circumstance if his victim practiced witchcraft to grave
harm. In this case the accused were afforded an Opportunity
some of their suspects deny that they had bewitched Molefe and caused
his death by use of witchcraft. See page 12 of the
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
"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.
in Fundakubi supra at 819 it is stated that :
"But even within the class of witchcraft murders with which we
ere dealing it should not be supposed that the existence of
in witchcraft must necessarily and in all cases be treated as an
effective extenuating circumstance."
come to the conclusion that whatever extenuating circumstances may
exist, do not serve to palliate the horror of this crime.
find none in respect of either of these accused.
MONA will you say why death sentence should not be imposed on you
.....? I did not do the act intentionally I was pained
deceased saying they had killed my father.
MONA will you say why death sentence should not be imposed on
"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
My children I left with no one to look after them. Father is aged. I
am the only son.
I ask for
respect of the assault with intent to murder in Count 11 each accused
is sentenced to three years' imprisonment.
1 Tseliso Mona in respect of the murders of 'Mapokoane Solane,
'Mamohaila Tsoeute, 'Mamatatane Qamane and 'Mamakhalema
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.
1 you Khopiso Mona in respect of the murders of 'Mapokoane Solane,
'Mamohaila Tsoeute, 'Mamatatane Qamane and 'Mamakhalema
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.
have mercy on your souls.
assessor agrees with the findings.
Defence : Mr. T. Mda.
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