HIGH COURT OF LESOTHO
matter of :
SERINE HELD AT BUTHA BUTHE
by the Hon. Mr. Justice M.L. Lehohla on the 19th day of February,
accused pleaded guilty to a charge of murder wherein the Crown
alleged that between 1st January, 1989 and 19th January 1989
exact date being unknown to the prosecutor) he unlawfully and
intentionally killed one 'Mamokhotlong Lebota at Matsoku in
district of Mokhotlong.
deceased was an 18 year old girl.
defence being alive to the inclination of the Crown to nonetheless
lead oral evidence of
PW1 Motintinyane Rabukana
PW2 'Mathabiso Letsota
PW7 Pheello Mashongoane
PW9 John Kitsane
PW11 Det.Trooper Letsoepa admitted the PE depositions of the
witnesses. The Crown accepted the admissions but nonetheless sought
to have PW11's oral evidence led to highlight certain
aspects of this
case. This was done and PW11 accordingly underwent a brief
cross-examination at the end of which both parties closed
admitted depositions were taken as read into the recording machine
and thus made part of the present proceedings.
then heard arguments by respective Counsel.
important to note that in tendering his plea of guilty the accused
qualified that plea by adding a rider, to wit "I plead
but for reasons". His Counsel Mr. Ntlhoki asked to be given an
opportunity to confer with the accused. This was granted.
later the accused gave to the Court his unqualified plea of guilty to
the charge of murder. This long interval was utilised
with other cases. Later however his Counsel rose to indicate that the
plea was in accordance with his client's instructions.
3325 Detective Trooper Letsoepa testified under oath that the accused
led him to certain places following a report received
on 19-1-89 from
messengers of Matsoku about a dead body found in a dam in their area.
PW11 said when leading
the places specified the accused was in a good and healthy condition.
This witness further testified that he had not said
or done anything
untoward to the accused.
21-1-89 following the accused's explanation he and the accused
proceeded to a certain place where the accused pointed at some
recorded in his note book the things discovered at this first place
of investigation, namely, the Zion river at Matsoku. Having
granted leave to refresh his memory PW11 told the Court that at this
first place the accused showed him
yellow jersey handed in and marked "Exhibit 1"
red hat handed in and marked "Exhibit 2"
off-white panty handed in and marked "Exhibit 3".
were contained in a plastic bag.
spot the accused led PW11 to Khutlo-Peli river where the accused
Pitso Blanket handed in and marked "Exhibit 4"
brown shawl handed in and marked "Exhibit 5"
blue dress with spots handed in and marked "Exhibit 6"
blue and off-white training shoe handed in and marked "Exhibit
witness explained that on the ground he found
bluish handkerchief handed in and marked "Exhibit 8"
Inside this handkerchief was found
handed in and marked "Exhibit 9".
PW11 proceeded to the accused's parents' home where he was shown
harmer by the accused, the harmer was handed in and marked "Exhibit
shown two grudely forged or fashioned swords(definitely not
manufacture made) handed in and collectively marked "Exhibit
that day PWll said he had also found other items of clothing,namely
(12) a pair of Khaki trousers which he said the accused
at the time when PW11 found it. This was later handed in before Court
and marked "Exhibit 12". PWll also
found (13) a blue and
white blanket handed in and marked "Exhibit 13". PW11
further stated that at the accused's home
he found (14) a green pair
of trousers handed in and marked "Exhibit 14".
witness testified that in the absence of the accused he was shown
many atones by the chief near where the deceased was found.
big others small. PW11 subsequently confronted the accused with these
stones. The accused in turn gave an
Among the big atones were four particularly big ones. The accused
gave an explanation regarding these also,
denied that he had assaulted the accused at any stage before during
or after the investigation of this matter. It was put to
PW11 that in
fact the accused even kept running away from him to another police
station because PW11 had been assaulting him. PW11
indeed the accused escaped from custody while nothing had been done
to him at the previous place where he had been
kept in custody.
for the accused sought to show that the accused had been assaulted by
PW11 by putting it to this witness that he had so
the accused that the latter was not returned to him. PW11 conceded
that the accused was not returned to him
but was sent to a
conceded that the accused was not taken to Mapholaneng police post
which is PW11's station but insisted that the reason the
taken there was not to place him away from a place of assaults and
molestation but only to place him before the Magistrate
Magisterial seat at Mokhotlong where the matter concerning the
accused could be worked out.
it didn't surprise PW11 that while going on with his investigations
the accused when recaptured was not sent to him but
Headquarters at Mokhotlong, he said that at the time he was through
with his investigations.
insistent that he had completed his investigations even though the
accused in escaping from his custody was still in handcuffs
to be broken at the place where he had gone before the second capture
or after the first capture.
it is correct that the trousers were handed to PW11 by a witness
whose depositions were admitted and accepted PW11 countered
stating that the trousers were found on the accused who handed them
to PW11 in Khitsane's presence. When told that in fact it
PW9 who said he seized the khaki trousers from the accused and handed
it to the police PW11 said he was with PW9 and
therefore could not
blame him for saying that.
admitted and accepted evidence of PW9 supports that of PW11 in regard
to events which took place in each other's presence.
the chief's messenger who was detailed in that capacity in response
to an alarm raised. He had earlier learnt that the deceased
knew very well as they attended church
raised was in regard to a strange discovery that had been made at the
Khutlo-Peli river. PW9 saw the body of the deceased
at a place near
where many other people had gathered.
of the deceased was immersed in some collection of water referred to
by witnesses in the Court below as a dam, it could
very well have
been a pool in the river. There were stones on this body. PW9
observed a blood stained stone the size of a fist.
Below the place
where PW9 observed this stone there was a lot of blood which had
collected in some form of a ditch in the ground.
There was also a
trace of blood which appeared to have been caused by either dragging
others waited for the police who later came. It is important at this
stage to note that because of some previous incident
occurred between the accused and the deceased not so long before the
events that led to the discovery of the deceased's
had been cast on the accused as the culprit.
Motinyane Rabukana whose PE deposition was admitted had testified in
the Court below that the deceased was his sister. He had
in the chief's court as an acting Chief of Ha
In December 1988 while acting in this capacity he recalled that the
deceased and her grandmother 'Mathabiso Letsota
came to his court
reporting that the accused had assaulted the deceased. There was
proof of this assault. The accused was sent
for and he stated that he
had assaulted the deceased because she (she was a shepherdess) had
let her stock graze on crops.
a letter referring the then complainant i.e. the deceased and her
assailant to the Mapholaneng police. PW1 had received
referring these two to Semenanyana Local Court.
asked that the deceased should put up at his place in order to make
for the local court the following day,i.e. the date
set for the
hearing of the matter between the deceased and her assailant.
deceased failed to turn up. The accused did attend court on the
appointed day but the case failed to go on due to the deceased's
would seem that the motive for the killing was to stop the deceased
relating the incident of her assault by the accused
to Court and
consequently the accused thereby escaping whatever punishment the
local court would have imposed on him if found guilty.
PW9's anxiety heightened when he received a child sent to him by
'Mathabiso inquiring about the deceased's whereabouts on
following the deceased's supposed day in Court. Apparently the
deceased who had complied with PW9's request to put up at
before proceeding to Court the following day had failed to reach
PW9's place because she was interrupted in her way to
from her grandmother's where preparations had been effected and
permission granted to enable her to go to PW9's place
for the night
preceding the Court day that was never to be.
back to PW9's evidence: This witness stated that following an
instruction per police letter, he and others helped remove the
from the water. Some time during the day a man identified as the
accused was seen sitting some distance away near where the
been removed. Attempts to catch him failed. It had been noted that he
had not been seen home for some time. A day or two
Lebese Borotho captured the accused and brought him to PW9 and
others. He was kept at the chief's place where he
escaped leaving his
gumboots. Because this witness had on the previous occasion when
searching at the accused's parents' home noticed
that there were
white shoes belonging to the accused, he looked for these when he
learnt that the accused had escaped, no doubt,
on bare feet from the
chief's place. Thus the absence of the white pair of shoes created
that the shoes at his home were removed by the accused himself after
his escape from the chief's place. It was during
this process that
PW9 found an axe which appeared to have been used for cutting
something hard. This axe seemed to have been recently
seized it and handed it to the police. The back of the axe seemed to
have also been used.
was mounted for the accused. He was seen across a slope, rushed at
and captured. The handcuffs which he had been wearing
separated by cutting the connecting middle. PW9 heard the accused say
that he was going to point out the deceased's cloths.
These were the
items of clothing attested to by PW11. The accused within PW9's
hearing instructed his wife to produce a sabre used
in finishing the
deceased off. The wife fetched and produced it from the front
thatching of the accused's hut and handed it to
PW9 who handed it
over to the police who were in attendance during the occurrence of
admitted evidence at PE supports that of PW11 as to the excursion to
the river where a plastic bag containing the items of
mentioned was found. It also corroborates PW11's evidence to the
effect that next to where the body had been lying the
stones below a cluster of grass amongst which were found a brown
shawl and a floral dress. There
corroboration as to the blood-stained handkerchief, the M120-00
contained therein and the canvass shoe. PW9 indicated that these
things were also soiled with mud. He also told the Court below that
the accused indicated where he had started chasing after the
deceased, where he had hidden himself, how far he had chased her and
where he had hit her with a stone. These acts of admission
part of the accused are not inadmissible because they were purveyed
before lay people and if in the process the police happened
present they are still admissible because on the authority of Petlane
vs Rex 1971-73 LLR p.85 by Milne JA in making the admissions
accused did not say that he had intentionally killed the deceased nor
could possibility of self-defence have been excluded.
In fact it is
stated in that authority that
"Although the surrounding circumstances may be taken into
account in deciding whether a statement amounts to a confession,
fact that the appellant knew when he made the statement that the
police were looking for him in connection with the killing
deceased could not have the effect of making his statement a
confession of the offence with which he was subsequently charged,
the statement did not exclude the possible defences of self-defence
or accident. Further, the fact that it transpired at the
if such defences had been raised they would not have been
maintainable could not operate to turn the appellant's statement
the police into an unequivocal confession of murder".
Letsota) PW2's evidence is important in so far as it shows that she
had released the deceased to go and put up
home. When the court day had gone past the previous day without the
deceased showing up she sent children to inquire about
her at PW1's
actually at a later stage met with PW1 who evidently could not ait
back after hearing of the deceased's failure to show up when
himself had spent, not doubt, anxious hours wondering why she had
failed to turn up for their appointment the previous day,
his hopes to perhaps find her at Court were dashed by the deceased's
failure to attend court even.
during this meeting on the way that PW2 referred to the money in the
amount of M120-00 which PW2 had meant the deceased to
hand over to
PW1 for the purchase of a blanket for the deceased's sister. The
money had been wrapped in a handkerchief in M20 notes.
Mashongoane) PW7's evidence is important to the extent that it shows
that while he was herding after cattle his dog started
what PW7 thought was small game like rabbits or rats. At the end of
the trail the dog had blazed PW7 discovered to
his horror that his
dog had helped him discover the dead body of the deceased in a dam.
Having taken fright he raised an alarm
to which villagers responded
by heading for the
evidence supports that of PW1 as to the assault that led to the
laying of charges against the accused. PW2 gave the description
the cloths which the deceased wore when intending to go to Court.
the cloths which were handed to PW11 who was led to them by the
accused. Some of them were found where the body was found.
were found in a different rivulet where the accused alone could have
known of their presence. PW2 was present when the accused
some rocks under which he retrieved the handkerchief in which the
M120-00' was done up. She identified the handkerchief
as hers and the
money as that which she had asked the deceased to convey to PW1.
the investigating officer who told the Court that he examined the
body of the deceased. The body was discovered some three
the deceased's disappearance. The body according to PW11 appeared to
be bloated. There were open wounds on the head.
The right eye was
depressed. The private parts appeared to have been cut off.
Court saw some of the stones PW11 referred to in his evidence as
having been found around the body. It was stated by
some of them were used to submerge the deceased's body under the
water with the clear purpose of insuring that it should
the Court that one of the pairs of trousers retrieved from the
accused bore what looked like blood stains. He is supported
by PW9 in
further revealed that some of the stones found in the dam bore what
seemed like brain matter. Some of the stones found
in a different
area where hairs were also observed were too big for PW11 to pick up.
The accused gave explanations to PW11 with
regard to blood stains on
stones around the scenes. There is also evidence of pointing out.
has realised that as there was no eye witness to the killing the
evidence on which the case is based is circumstantial.
regard to this the Court was referred to Rex vs Blom 1939 AD 188 a
case famed for the authoritative and clear statement of
regarding circumstantial evidence. This Court had occasion to look at
Ghofamodimo vs State No.4\84 by Maisels P. (as he
then was) sitting
in the Botswana Court of
In that case Maisels P. was faced with the situation where the body
was missing. That Court had to draw inferences to confirm
Court's verdict that the appellant was guilty.
logical conclusion one is led to by the evidence should derive from
the previous history of the assault substantiated by "Exhibit
a medical form. Parties in that case of assault supported by "Exhibit
B" were the deceased and the accused. The
deceased never reached
the Court despite evidence of her willingness to go there. Her body
was found with brutal injuries. Thus
it could not be farfetched to
conclude that whoever inflicted the injuries had the clear intent to
put an end to the assault case
before the local Court.
mortem is once more an egregious apology for a document that should
be informative to the court dealing with as serious
a case as this.
With respect to what the cause of death is it says "no obvious
reason found". Little wonder then that
the Crown in its
submissions told the Court that it does not rely on the post mortem
further submitted that the case against the accused based exclusively
upon circumstantial evidence would not suffice were
it not for the
accused's pointing out. But the
factor of the accused's disappearance which was simultaneous with
that of the deceased reasonably cast an aura of suspicion
Furthermore his presence around the scene, no doubt, brought about by
the fact that his plan to keep the body of the
deceased under water
where he had hoped it would eternally remain undetected, had back
fired in the sense that the body had, subsequently
become and kept
partially afloat. Finally, having been seen near where the body had
been and realising that he was observed he
avoided contact with
people he must have appreciated were concerned with the fate of the
deceased and how it had come about. It
could even be thought he had
gone to the scene in order to once more sink the body so as to remain
under water and never be detected.
July last year the law was that the pointing out even if secured as a
result of impropriety on the part of the police would
notwithstanding the impropriety. That is no longer the case. Hence
the importance of PW11's testimony that he had
done nothing untoward
to the accused to induce him to point out spots where items of the
deceased's clothing were retrieved. See
Mabope & Others vs R C.
of A (CRI) No.5 of 1986 (unreported). PW11 strongly denied the
suggestion that he had assaulted the
accused as a result of which
accused even ran away to another policeman. Mr. Sakoane submitted
that it is
for an accused person to run from one policeman to another. He chose
to rely on the inference sought to be drawn from
the fact that the
victim and the accused were referred to Court. For some unknown and
unfathomable reason that defies expectation
the victim failed to show
up. But the accused later leads the police to the place where the
cloths which had been worn by the victim
learned Crown Counsel invited the Court to consider five
possibilities that might have let the accused know about the offence;
the accused saw the murder and or participated in it
if he did not commit the murder he saw others do so and secret the
body to the dam
he didn't see when the deceased was murdered but only saw where
various cloths were secreted to various places where he
he neither saw the commission of the crime nor people who did it
but learned from a third party where these cloths were
by accident he might have come across this incident.
eliminated all of these possibilities except one that the accused is
solely responsible for the murder Learned Counsel pointed
the accused had a motive for the killing. He
brought to the Court's attention that the accused did not say that
police brought him to the place of the pointing out.
Nor was there a
suggestion that the defence was that the items of clothing were
planted where he was forced to smell them out.
Nor was it suggested
he was schooled by police to say where these things were.
accused does not deny murdering the deceased. He closed his case
without giving evidence. See, R vs Nyathi 1916 AD 342. See
also R vs
Theron 1968(4) SA 61 at 63-4.
submitted that because the defence closed its case when the
prosecution had established a prima facie case against the
then the Crown's case becomes conclusive. It was further argued that
the accused's silence in this regard becomes decisive
and should be
interpreted in favour of the Crown. I however think the true position
in law is that at the close of the case for
the defence where no
evidence was given by the defence the proper question is no longer
whether there is evidence led by the Crown
on the basis of which the
Court might convict but whether on the basis of the evidence led the
Crown has discharged the onus by
proving the accused guilty beyond
reasonable doubt. The earlier question only becomes relevant at the
stage where there is application
for the discharge of the
and not after the close of the defence case.
was referred to the case of Mohlalisi in connection with the fact
that the accused had pleaded guilty. The Court was accordingly
invited not to ignore the effect of such a plea.
Stephen Tsatsane vs Rex 1974-75 LLR 105 at 109 Maisels P. (as he then
was) quoted with approval a passage from the South
African Law of
Evidence 2nd Ed. by Hoffman at p.305 where the legal position is
stated correctly as follows ;
"A formal admission is made for purposes of particular
proceedings and is only binding
in those proceedings............The difference is that in the
proceedings in which it was made the formal admission is conclusive,
but in other proceedings it is open to the accused to explain it
away. The same is true of a formal admission which has been
The fact that such a statement was made remains an item of
evidence against the accused which the Court is entitled to consider,
although it may carry little weight if the accused has a satisfactory
explanation for why it was made. The same is true of a withdrawn
of guilty. A plea of guilty is in effect a formal admission of the
essential elements of the charge. Even after withdrawal,
that it was made is something which the court is entitled to
instant matter the plea was not withdrawn but Mr. Ntlhoki for the
defence wished in submissions to so water it down as to
Court to ignore it.
submitted that despite the accused's plea of guilty the conviction of
murder would not be sustainable because the accused's plea
is an unsworn statement that he is guilty. Placed side by side with
the statement at the end of the quotation cited above
of this submission escapes me. However Mr. Ntlhoki further pointed
out that the Crown has sought to say that this
bare allegation i.e.
plea of guilty supports its case.
out that the Crown has to still establish its case despite entry of
the plea of guilty the learned defence Counsel referred
240(1)(a) of our Criminal Procedure and Evidence Act 1981 and
contended that despite the accused's plea of guilty in
a murder case
the Court has nevertheless to hear evidence.
pointed out that what happened in this case is that the accused made
admissions of depositions referred to earlier. He contended
could be argued that because of an agreement the depositions were
taken as read except that of Trooper Letsoela. (I may
while at this
point out that the recording machine was often going out of order
while this Court was sitting at Butha Buthe without
of quick repairs in sight. This was compounded by electricity outages
leaving the Court with no option but with
concurrence of both Counsel
to proceed in the
courts followed before the advent of mechanical recording equipment).
Ntlhoki arguing in this vein pointed out that if indeed the reading
of the PE depositions amounted to evidence such evidence
served to show that the deceased disappeared and the body was later
discovered followed by the accused's arrest; followed
in turn by
discovery of certain items of clothing. The learned Counsel pointed
out that PW11's oral evidence seemed to have been
for the purpose of showing that the pointing out was done
voluntarily. He said that when admitting this witness's PE deposition
the defence was aware that such deposition had not canvassed the
voluntary aspect in the pointing out. Learned Counsel said in
admitting such deposition the accused was prepared to take a risk
that the pointing out was voluntary. He argued further that now
the Crown has raised it, it is fitting that the defence should
challenge the voluntariness in the pointing out, for otherwise
Crown had not raised this the Court would be entitled to say the
pointing out was voluntary.
learned Counsel pointed out that once this has been raised and
challenged it is incumbent upon the Crown to satisfactorily dispel
the suggestion that PW11 had assaulted the
He further argued that because the Crown had failed to do so when
having ample opportunity to do so the Court should conclude
had in fact assaulted the accused. He pointed out that PW11's
deposition shows that PW1 was for a large part present
investigation as well as at the pointing out yet the Crown did not
call him to corroborate PW11. He suggested that PW9 could
been called to corroborate PW11.
Ntlhoki submitted that PW11 is not reliable as a witness for denying
assaults on the accused because the accused escaped from
only to be placed under the custody of another policeman from whom he
evidence that I considered from the PE depositions shows that he had
also escaped from the Chief's place where no allegation
against the Chief's men who had kept watch over him was made.
Furthermore on 10-6-91 a Bench Warrant had to be issued
arrest of the accused after the Court heard the evidence of Trooper
Letsoepa that notwithstanding that he had seen the
accused on the
previous Wednesday and informed him that the case was to proceed on
10-6-91 the accused failed to attend Court.
This witness had taken
the trouble to give the accused this information in the presence of
the accuse's Chief at the Chief's place.
Needless to say after the
accused's capture his bail was cancelled.
Ntlhoki referred me to Mabope by Ackermann J.A. for the proposition
that evidence of pointing out as a result of assaults is
admissible and sought to persuade the Court to the view that the
accused had been assaulted and therefore any evidence
of pointing out
elicited by assaults should be discarded and that because, short of
the pointing out nothing connects the accused
to the crime charged he
should be discharged as no eye witness has testified to the fact of
Ntlhoki submitted that where the accused fails to testify the Crown's
case cannot be conclusive unless his guilt could be inferred
great degree of certainty.
Mr. Sakoane reacted to the submission that there is no evidence
before this Court despite that Section 240(1) of the Criminal
Procedure and Evidence requires that it be supplied, by pointing out
that the Court has before it the PE depositions which were
by the defence and accepted by the Crown. In support of the view that
such depositions constitute evidence he referred
the Court to
Hoffman's 3rd Ed. at p.333. While an analogous section in the
Republic of South Africa contents itself with "proof
facts" our Section 273 goes a step further and talks about
"sufficient evidence". Thus it is not accurate
that all the
Crown has is the accused's plea of guilty minus evidence.
above the evidence placed before Court the Court is entitled to
consider the question of the accused's plea to the charge
out earlier in Hoffman's 2nd Ed. See also S vs Kanyile and Another
1968(1) SA 201 where the accused elected to remain
silent in a case
where pointing out featured.
plea the accused over and above the evidence agrees with the elements
alleged in the charge.
further indicates that even where a plea of guilty is withdrawn the
Court is entitled to consider that it had been tendered.
In this case
the plea has remained of force throughout the trial. In CRI\T\17\80
Rex vs Mohlalisi and 2 Others (unreported) at
p. 14 Mofokeng J (as he
then was) extracted a passage in Rex vs Kumalo and Another 1930 AD
193 at 207 where the principle was put
with terse lucidity by
Stratford J.A. as follows :
"The formal withdrawal of a plea of guilty no doubt gives the
accused the right to full trial on the issue of his guilt but
does not alter the fact, if it is the fact, that he has solemnly and
freely admitted his guilt; that confession stands as
evidence. The accused may, of course, retract his confession and
explain how he came to make it, but even then the trial
reject the explanation and believe the confession".
J's words are instructive as he stated
"This accused, in my view, pleaded guilty with deliberateness.
There was no misunderstanding of any kind whatsoever.
therefore, a judicial confession of all material facts alleged"
"The accused has not explained to me the circumstances of how he
came to make such a confession before me".
also be noted that submissions made by the defence where the accused
has given no evidence tend to hinge on speculation.
Suffice it to say
that the Court is not entitled to speculate but to consider concrete
evidence before it.
alive to the fact that the Court should rely on evidence and
inferences which can legitimately be drawn from such evidence
from imagination. The question of how to deal with an accused person
who closes his case at the close of Crown case without
evidence has been dealt with at length by various authorities. I wish
to rely on the statement in Rex vs Basotho Makhethe
CRI\T\32\78 (unreported) at pp 13 and 14, to wit;
"But when the defence has closed its case without leading
evidence, the question to be decided is : has the Crown established
the charge beyond reasonable doubt. The Court, when considering this
position, is entitled to consider the fact that accused has
In Ex vs
Nyati 1916 AD 342 the words of Innes C.J. are as
follows: "Where there is evidence entitled to credence which
directly implicated the accused person, the fact that he refrains
from giving evidence may well be regarded as a necessary element to
be taken into consideration and weighed with all others in
bearing in mind always that the onus is on the Crown".
cross-examined with a view to establishing that the accused had been
assaulted hence his pointing out the various places
items were retrieved. But PW11 denied this. The purpose of
cross-examination is to elicit from a witness evidence
contradicts his on crucial points. Where an allegation that has not
been backed up by any explanation, is denied the Court
has nothing to
go by. It would be extremely difficult for the Court to reject
evidence denying certain charges of assault as false
if it is left in
the dark by the accused who does not tell it how he was assaulted. In
such a case PW11's evidence remains unchallenged
as the evidential
burden has shifted to the other side. I should hasten to say by this
is not meant that the onus has at all shifted
from the Crown to prove
its case beyond doubt. The burden remains on it throughout.
suffice therefore to say once admitted the Crown's evidence becomes a
weighty element in the determination of this case
because it remains
unchallenged. No evidence has been led to show that the accused's
detention was not lawful. To say
to the contrary in the face of this amounts to speculation that he
was unlawfully detained and all that followed was illegal.
for the Crown submitted that even assuming that the evidence of
pointing out is not admissible given the circumstantial
the accused's plea it would be idle to surmise that the charge is not
Counsel urged the Court to disregard the case of S vs Khomo and
Others 1975(1) SA 344 as irrelevant for it deals with direct
opposed to circumstantial implication.
the accused freely tendered his plea of guilty before this Court.
This in itself would go a long way in negativing the allegation
on his behalf that things he is alleged to have done he did under
pressure when in fact not done under pressure. In any event
no evidence that the accused was under any pressure at the time of
pointing out. Any that was suggested under cross-examination
This is a
very serious crime effected without regard to a fellow human being's
life. Every effort was employed to conceal the fact
accomplishment. The motive in carrying out this crime was plainly to
thwart the victim's resort to courts of law
have been established for the orderly solution and settlement of
conflicts and disputes between parties. From the manner of
execution and the plan that was employed to avoid detection it seems
this crime was premeditated, and the disposal of the body
according to plan. The injuries consisted of broken jaw and severe
injuries on the skull with the result that brain tissue
was stuck on
some stones. There is no gainsaying the fact that the skull
constitutes a vital part of the body. Hitting a defenceless
a heavy object or with an object on the head with such force as to
break the skull and let out brain tissue bespeaks
nothing else but
wrongful intent. The mutilation of the body especially the private
parts indicates contempt with which the accused
viewed his victim.
finds the accused guilty of murder as charged. My assessors agree.
being convicted of the murder of 'Mamokhotlong Lebota the accused
gave evidence upon which he was cross-examined and finally
Ntlhoki and Mr. Sakoane for the defence and for the Crown
respectively addressed the Court on the question of extenuating
settled law that the onus of establishing, on a balance of
probabilities, the existence of extenuating circumstances rests
preparatory examination covering sheet reveals that as at the date of
his arrest i.e. 30 January 1989 the accused was about
34 years old.
evidence on oath the accused told the Court that some time towards
the end of 1988 the flocks of sheep belonging to the accused
deceased's relatives co-herded by the deceased strayed and grazed on
some crops destroying them. The accused punished the
flogging her for this act of carelessness.
deceased's parents laid a charge against the accused for
the deceased. The case was due to be heard at Semenanyana Local Court
the following day. The deceased did not reach that
accused informed the Court that the day when the deceased died he was
from his sister's place near Motintinyane, the place which
deceased seemed to be bound for.
accused told the Court that he recalled that he was drunk and had
also been smoking dagga. He and the deceased met along the
asked the deceased where she was going. Then the deceased replied
that the accused should not ask her that. When the deceased
as stated above the accused told the Court that he just found himself
having picked a stone and hit the deceased with
it. He went further
to say he realised that he had finished the deceased. Thereupon he
felt ill at ease or embarrassed hence he
dragged the deceased to a
pool of water where he placed some stones on her after undressing her
in order to create an impression
that she had been waylaid and her
assailants who had wanted to rob her had robbed her of her cloths.
further testified that he left the deceased there and went away. He
was subsequently arrested but before the arrest he had met
deceased's father after the incident. He says
confessed to the deceased's father about the incident and asked for
forgiveness as well as undertaking to raise the deceased's
way of paying compensation to the deceased's family. He however has
not done so yet and would wish the Court to impose
such punishment on
him as would enable him to be as good as his word to the deceased's
father who had accepted his apology for
the murder of the deceased.
the Court that he is not a regular drinker but is only learning to
drink. Nor is he a regular smoker of dagga. That day
he says he had
taken three scales of Sesotho beer and smoked two rolls of dagga one
of which he finished smoking along the way
before he met the
deceased. The reason, he said, for smoking dagga was that he had been
advised by someone to do so in order to
remedy his tendency to faint.
accused said he is semi-literate and works as a farming peasant who
also looks after live-stock. He is married and has four
the Court that he never premeditated the deceased's death nor had he
motive to kill her in order to ensure that she did
not reach the
Semenanyana Local Court where he and the deceased were due to appear
the following day concerning charges she or
her parents had pressed
further told the Court that he had taken the deceased's parents' suit
against him seriously, moreso because it had been rumoured
that as a
result of that suit the accused's live-stock would be forfeited. He
pointed out he had not been sued before.
reiterated that he was remorseful about the deceased's death.
revealed that the accused and the deceased were closely related. The
accused clarified that this together with the fact
that he was at
peace with the deceased's parents accounted for the fact that his and
the deceased's relatives'sheep (including
perhaps her parents') were
herded together. He acknowledged that people who are so closely
related treat each other with consideration;
that in the event of
differences between them a report is made to the next of kin at the
earliest opportunity or an apology is
tendered to the party wronged.
that on the fateful day the deceased was going to PW1's home while he
was coming from his sister 'Mathebe Mofolo's place
lying in the same
direction that the deceased was headed for. He estimated that it
would take two hours to walk normally between
his home and this place
called Motintinyane. He met the deceased about half-way between these
places. The spot where
was far from where people could hear even if she screamed as she did.
time the accused met with the deceased the sun was about to set and
(mountain) shades had become long.
accused stated that he was aware of a misunderstanding that arose
between him and the deceased's parents as a result of his
whipped the deceased for letting sheep graze on crops. He prefers
calling this a misunderstanding in response to the question
to it as a quarrel. As a result of this whipping the deceased's
parents had decided to sue him and he feared he was going
to lose his
animals as a result. The case was to proceed the next day after the
killing. Given all this, the accused wishes this
Court to believe
that when he approached the deceased's father the latter accepted his
apology and hung on to the accused's word
that he would pay
compensation. For the court
this it means the deceased's father made nothing of the anxiety of
PW1 and PW2 about the deceased's disappearance, and
that he failed to
reveal, when attempts were directed everywhere to find the deceased,
that the accused had at least told him that
he knew where the
deceased was. This account given by the accused of the deceased's
father's conduct is most absurd.
has observed at page 2 of the admitted depositions of PW1 that the
following is recorded
"Later deceased came with a letter directing me to refer the
case to Semenanyana Local court. I called accused and instructed
to go to Semenanyana on some days to follow (sic. That day
'Mamokhotlong now deceased was before me. I instructed the deceased
to go and put up at my place so that we would fare it together".
extract it may not be farfetched to deduce that the accused learnt
that the deceased was to go and put up at PW1's place
on the day the
deceased met her death. However I think that in the absence of oral
evidence led in this Court to conclusively show
that the accused
obtained the information from PW1 that the deceased was going to put
up at his place for the night it could well
be rash to make any such
inference. Be that as it may the accused made a merit of the fact
that he felt remorseful for his act
hence his decision not to
disclose to PW1 that the deceased would not attend Court on the day
to which the case was postponed by
PW1. At that time the accused knew
that the postponement was in vain but under colour of remorse he kept
up the lie that the deceased
would attend Court, implying she was
still alive when he knew he had killed her.
CASE NO. 85\86 THE QUEEN vs SIMON MOSA MPOFP (unreported) at page 2
relating to the question of remorse Dunn A.J. in Swaziland
"The fact that an accused person is unable to to live with his
conscience does not necessarily reflect the state of mind in
was at the time of the commission of the crime. There must, I
imagine, be lots of persons who are haunted by the thought
undetected crimes they have committed without showing any remorse.
See S vs X 1974(1) SA 344 at 347 H to 348 A"
accused after committing the murder immediately thereafter concealed
the body to avoid detection. He says he hid the body to
remorse. This is difficult to accept.
further said a combination of the effect of Sesotho beer he had drunk
and the dagga he had smoked is accountable for the provocation
felt when an innocent answer was given that he should not ask the
deceased the question he had put to her. First, there is nothing
provocative in the words allegedly used to provoke the accused. Mr.
Ntlhoki advised in submissions that much would depend on the
which the words were uttered. But no evidence in re-examination was
led to substantiate this new found notion despite that
cross-examination the Crown strenuously and in my view successfully
showed that there was nothing provocative in the expression
uttered by the deceased to warrant the fate she was made to suffer at
the accused's hands. Even if for argument's sake
the use of the first
stone hurled at the deceased felling her to the ground was in
response to her alleged utterance of the expression
that provoked the
accused in the absence of evidence that the
provocation was not desisted from it does not seem justified that two
more stones were used to bash her skull with the
result that brain
tissue even came out.
Ntlhoki argued that the Court should pay particular attention to the
fact that the accused kept lingering around the vicinity
of the scene
and urged the Court that this strange behaviour should persuade the
Court to the view that the accused was somewhat
not in full control
of his mental faculties when he committed the crime. But Schutz J.A.
in C. of A.(CRI) No.2 of 1982 Manamolela
and 8 Others vs Rex
(unreported) at 34 said
"suspects do, of course, do stupid things in moments of panic or
the same learned Judge said
"Again, of course, I must concede that suspects sometimes do
behave stupidly under the pressure of events".
accused said that the intake of liquor and smoking of dagga should be
regarded as extenuating his crime more especially
that he was a
novice in the taking and use of habit-making drink and dagga, it
emerged in evidence that he recalled his acts at
the time of
committing the offence with clarity that defied that his mind was
befuddled by the effect of drink and dagga. He illustrated
clarity and maintained good sequence in narrating the use he made of
three stones to kill the deceased. He related the next
step he took
of dragging the body
dam; then undressing the deceased, dropping her into the water and
applying rocks on top of the body to ensure that it would
surface. Ultimately he kept the lie alive by not enlightening the
Court president who postponed his and the deceased's
case to a later
date that the deceased would never attend Court.
Counsel for the Crown urged the Court to reject the contention that
the accused had taken any liquor or dagga; moreso because
things and their effect on the accused's mind could have been pleaded
as his defence at trial. Learned Counsel pointed
out that the fact
that they were not pleaded shows that the accused had no him faith in
them as a defence in the first place. With
regard to what effect the
alleged intake of beer and the smoking of dagga had on the accused
said he had no knowledge of what effect
these things had on him
because he said he used not to drink or mix drink with dagga.
"All the more reason why if you are not an addict you should
have felt the difference . .. . ? I don't know.
But you remember the facts very well on that day: the size of the
stones used, their number; when the deceased died and how you
the body, undressed it and sunk it under water....? Yes.
Those are ways not of a drunken man but of a cunning one....? I don't
You want to avoid the question. You behaved like a sober man.....? I
don't know if I was
drunk. But I am relating what happened."
attempt to find if there are extenuating circumstances in a case the
Court is at large to consider the evidence on merits
verdict in the main trial. The evidence that has been admitted at
that stage of the proceeding does not give any inkling
of the accused
having taken any liquor or smoked dagga. No suggestion was made to
even the only Crown witness who gave oral evidence
that the accused
had his mind befuddled by these things. His resort to them at this
stage amounts to a last minute attempt at clutching
at the straw of a
showed that the accused was not happy that the implication of the
case pending before the local court was that he would
animals to the deceased's parents. His anger, instead of being vented
on the parents, is vented on the deceased.
In C. of
A.(CRI) No.l of 1967 Motlatsi Ntsukunyane vs Rex (unreported) at 4
SCHREINER J.A. (as he then was) said
"The element of provocation was said to consist, against a
background of irritation caused by the land litigation, of the
deceased's instruction to the appellant's son to produce the fodder,
and his insulting language used in the following altercation".
rejecting the contention that extenuating circumstances existed the
learned Appeal Judge said at p.5 :
"The provocative features, such as they were, were not such as
to reduce the moral blame-worthiness of the appellant's conduct
reloading his gun and shooting the prostrate, helpless man in the
face from a distance of a few feet."
instant matter it is doubtful that use of further stones to finish
off the deceased who had been felled by the first stone
hurled at her
at a distance could help reduce the conduct of the accused's moral
blameworthiness. The added factor that the murder
appears to have
been committed in order to thwart the impending Court case between
the accused and the deceased, would in my humble
view tend to
aggravate the offence.
further argued that the accused did not premeditate the killing of
the deceased and that the conviction was on the basis
eventualis. There is evidence from which it is deducible that the
accused bore the deceased a grudge because the deceased
assault meted out to her by the accused. Following this report the
deceased's parents took the matter to Court. It
is this action that
motivated the accused to kill the deceased in order that the case
could not proceed; and in the process his
stock might be saved from
Mohlalisi and Others vs Rex 1981(2) LLR 394
J.A. (as he then was) sitting with Van Winsen J.A. and Rooney J, said
at p.403 :
"The question accordingly to be considered is whether the fact
that appellants did not premeditate the killing of the deceased
acted dolo eventualis consistutes, in the context of the
circumstances of this case, an extenuating circumstance. It is trite
law that a finding that a murder was committed with only a
constructive intent does not by itself and without more establish an
existence of an extenuating circumstance. See S vs Sebiko 1968(1) SA
495(AD) at p.497 E-D, S. vs De Bruyn en 'n Ander 1968(4) 498(AD)
p.500 E-G. On the other hand such a finding may correctly be had
regard to and in conjunction with other relevant circumstances
present in a particular case in order to determine whether there are
factors rendering the conduct of the appellants less blameworthy".
has had consideration of all relevant arguments raised, including
paying attention to the accused's evidence at this stage
proceedings and has come to the conclusion that apart from the
absence of extenuating circumstances what has clearly been shown
an aggravating feature instead; namely, that the killing was effected
to frustrate the administration of justice. Regard being
had to this
factor and all circumstances of the case considered the absence of
dolus directus on the part of the accused's conduct
cannot avail him
an extenuating circumstance.
finds that there are no extenuating circumstances in this case.
Will the accused say why the death sentence should not be imposed.
Accused's answer: I had not intended the death of this
person so it just so happens.
You will be removed from where you are standing and taken back in
custody where on an appointed day and time you will
suffer death by
hanging by the neck till you are dead.
have mercy on your Soul.
Crown: Mr Sakoane
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