HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr, Justice M,L, Lehohla on the 24th day of August, 1993
accused stand charged with the crime of Murder allegedly committed on
or about 27th December, 1988 at or near Qholaqhoe
in the district of
Butha-Buthe. The victim of this killing is said to be one Tloung
accused pleaded not guilty to the charge.
accused are policemen. The deceased was under arrest and in the
police custody in connection with an alleged offence , of theft
money when he met his death along the way between 4 point where the
search for money was effected and a place lying some considerable
distance away from the Charge Office where the deceased's police
escort intended to return and keep him that
'Mamokobo Mohloai, the deceased's mother, testified that the deceased
was escorted to her home by the two accused at around
6.00 p.m. on
27th December, 1988. On arrival accused 2 demanded that the deceased
should produce the money of which he was suspected
of having stolen.
the deceased stated that PW1 had put the money in an iron trunk. When
further being pressed to produce it the deceased
stated that he had
forgotten where the money was.
obscure reason, regard being had to the fact that PW1 was not
implicated in the suspected offence of theft, and that it
was late in
the evening accused 2 commanded her to accompany the trio to the
Charge Office. Apparently her protest to the contrary
suggestion that she should rather go to her chief's place prevailed.
observed that the deceased had injuries on the legs and shoulders.
Furthermore the deceased's wrists were swollen. However at
the deceased was not handcuffed. These events were taking place in
PW1's house when the two accused, PW1 and the deceased
stepped out of
that house making ready to go to the chief's place as earlier
It was at
the forecourt of PW1's where accused 2 summoned the deceased to
approach him so that the latter could be handcuffed by
actual text in this turn of events is as follows :-
"He (accused 2) said the deceased should come so that he could
be handcuffed. Accused 1 at the time had remained behind in
forecourt. He had entered the house too. He remained in the forecourt
when they went out of the house. Accused tied the deceased
stirrup. He had coupled one hand to the stirrup. He had used
handcuffs to couple the hand to the stirrup.
The other accused went behind the house. He came back i.e. accused 1.
He did nothing at the time. I went to the chief's place.
I got to the
chief's place before them".
it then to state that accused 2 handcuffed the deceased and by means
of yet another pair of handcuffs tied the first pair
of handcuffs to
the stirrup of a saddle on that accused's horse. The Court later
learnt from PW9 Trooper Mofilikoane that the name
of this horse was
Horse Gift and that of accused 1's was Litolobonya. Horse Gift was
noted for wildness while Litolobonya was tame.
PW1's narration of events set out above it seems clear to me that
accused 1 must have heard when accused 2 summoned the deceased
handcuffed. He must also have observed when that command was complied
seeks to take advantage of the statement by PW1 above that "the
other accused went behind the house" to distance
being able to see the deceased being handcuffed and subsequently
hitched to the stirrup of accused 2's mount.
argument's sake this was to be accepted, or perhaps even taken at
face value, subsequent events expose the insubstantiality
pretence beyond doubt.
granting that he came following on his horse when everyone else had
gone ahead of him to the chief's place, it leaves a big
concerning accused 1's attitude towards his own knowledge and
assessment of events. In the first place he knew that
had acquired some notoriety for escaping from police custody. In
spite of his knowledge of this he seeks to purvey
a story that when
he came to the chief's place finding that accused 2 and PW1 had
already gone into the chief's hut, he thought
that the deceased, who
was standing next to accused 2's horse and unattended despite his
reputation, was holding that horse. (Meaning
in deference to his
habit and true to his reputation he was free to escape if he wanted).
on their departure from the chief's place up to the point where
accused 2's horse allegedly started and as it did so
its rider as well as dragging the deceased in the process/ accused 1
seeks to keep up a pretence that it never
him that the reason why the deceased seemed to be inclined to walk
more closely to accused 2's horse was that he had been
hitched to its
and more importantly on this question of accused 1's knowledge that
the deceased was tied to accused 2's horse regard is
to be had to the
fact that no attempt was made to put to PW1 accused 1's defence on
the point. More significantly regard is to
be had to the absence of
any attempt to put to PW1 the version that it couldn't have been in
the presence of accused 1 that the
deceased was tied to accused 2's
horse's stirrup for by then accused 1 had gone behind the house to
pass water. The suggestion
in argument and in accused 1's version
that he had by then gone behind the house is taken out of context
because in the unchallenged
version of PW1's testimony nothing
indicates for a fact that when the deceased was tied to the stirrup
accused 1 was at that time
behind the house. It is not denied that
accused 1 went behind the house. But without an attempt to establish
at what stage he did
so it cannot be construed that such stage was
coincidental to the deceased being tied to the stirrup. Even at the
cost of being
repetitive I find it profitable to go back to the text
which on this point is as follows :
"Accused(2) tied the deceased to a stirrup. He had coupled one
hand to the stirrup. He had used handcuffs to couple the hand
stirrup. the other accused went behind the house"
accused 1 sought to rely on this as indicating that he
absent from the scene at the time he should have indicated that PW1
said of me
"I couldn't have seen the tying to the stirrup because I had
gone behind the house at the time".
any such dependable testimony it seems to me that accused 1 is
catching at straws. The phrase in quotes immediately above
meant to be prescriptive but is merely used as an illustration that
accused 1's contention that PW1 didn't say accused 1
saw the act of
tying the deceased to accused 2's horse cannot be relied on given the
context and circumstances described by PW1
on the point. Nothing in
the circumstances justifies any drawing of an inference that accused
1 did not see the act. Indeed the
contrary seems to hold sway because
the text above does not say when the act was being performed accused
1 had gone behind the
house, but rather that he went behind the house
when the tying was being effected by the other accused. Moreover PW1
accused 1 in the forecourt at the time accused 2 called
the deceased to the horse to which he was hitched.
an attempt made on behalf of accused 2 to discredit PW1 by directly
putting it to her that she "never saw accused
2 handcuffing the
deceased to a stirrup".
attack on PW1's credit-worthiness must be viewed against the
background that it was never denied that accused 2 tied the deceased
to a horse. Nor was it denied that when next he was found dead the
deceased was hitched to a saddle by means
of a pair
of handcuffs coupled to another pair which was used to manacle the
deceased's hand or hands.
omitted rather glaringly on behalf of accused 2 to put to PW1 that
the tying of the deceased to a horse was not in her presence.
accused 2 commendably approached the truth by indicating that it was
commonly agreed between him and accused 1 to tie the
accused 2's horse, his suggestion that the tying was effected
elsewhere than at PW1's place is lamentably flawed by
the fact that
the deceased did not get into the chief's hut. He did not do so
because he was hitched to a horse. Accused 1 who
observed that the deceased, who to him appeared to be holding accused
2's horse was standing next to that horse.
Needless to say the basis
for this belief, is incomprehensible when entertained by a man who
knows that the deceased usually seized
the slightest opportunity to
PW1's place to the chief's place is not a long distance. If accused 2
tied the deceased along the way between these two places
would have caught up with them for his delay at PW1's place was not
credible evidence shows that the deceased had already been tied to
accused 2's horse when he reached the
place any suggestion that he was so tied only after leaving the
chief's place is not only bizarre but merits rejection as
versions of the two accused are irreconcilable with what occurred not
only before the deceased's death but even after. Accused
2 says he
and accused 1 agreed that deceased be tied to accused 2's horse.
Accused 1 denies that he was any part of that.
accused suggested that the horse to which the deceased was tied
bolted when they were almost on the culvert. But the trail
suggesting that the deceased was being dragged by accused 2's horse
start a long way before one could reach the culvert.
supported by the evidence of the late Warrant Officer Khobatha PW8 at
P.E. where he said at page 10
"There was a sign of something that might have been pulled on
the road about two kilometers from the body".
being had to the fact that the culvert lay about midway between
the body and the start of the drag-marks it becomes
that the horse bolted because of the culvert yet the two accused are
insistent on this despite proof of the falsity
of their story.
It is a
further cause of bewilderment that although accused 2 who claimed he
was spilled by his horse with the result that his overalls
sailed, he failed to heed PW9's warning not to wash those overalls
which would lend credence to his tale that this indeed
inconsistency of the two accused's versions was exposed by DM3
Trooper Molatoli called by accused 1. DW3 worsened the weakness
accused 1's case. DW3 contradicted accused 1's version on the very
point he appeared to have been called to corroborate him
accused 1 said he was the one who showed the rest of the people where
the deceased's body was DW3 said it was accused
2 who showed them
where the body was.
cross-examination was devoted to PW10 Dr. A.J, Shayo whose simple
evidence was that he observed multiple bruises on the
body of the
deceased and pressure marks on the neck. He also observed open wounds
on the skull.
opinion death could have been due to head injuries or possibly
qualified his opinion by reference to the fact that because the
cartilage at the neck was fractured combined with the fact that
deceased had been injured this could account for the secondary cause
of death while the primary cause of death was the
that these head injuries were half-moon shaped would lend support to
the view that the deceased had been kicked by the
horse to which both
accused decided to have him tied.
the bruises on the body are accounted for by the long distance that
the deceased must have been dragged dead or alive till
deposited where he was later found dead still attached to the saddle
of accused 2's horse.
strangulation may well have been caused by the entanglement of the
neck into the combined length of two pairs of handcuffs and
stirrup. The weight of the deceased pulled over a distance of 2
kilometers coupled with tremendous kicks he must have received
the horse which is reputed to have been wild resulted in the girth
giving in and snapping thus releasing the saddle that fell
ground in a heap with the deceased still hitched to it.
now to the verdict: This whole episode seems to me to smack of utter
recklessness on the part of both accused to the safety
of the deceased. Accused 1 knew that the horse to which the deceased
was tied was wild. But accused 2's ignorance
of this horse's
peculiarity is no excuse because the very act of tying a man to a
horse apart from being risky is very
and smacks of utter disregard of the deceased's rights as a human
being. Things of that kind were rampant during the
heyday of slave
It is the
rule of law that where an accused's recklessness results in another's
death then the accused's act is murder.
accused are accordingly convicted of murder. I have no doubt that
extenuating circumstances exist in this case in respect of
accused. Counsel are both spared the necessity to lead evidence or
address Court in that regard.
PREVIOUS CONVICTION. Disparity in sentencing is called for by virtue
of the fact that accused 2 was senior to accused 1.
is sentenced to 2 years' imprisonment
is sentenced to 3 years' imprisonment.
: Mr. Sakoane and Mr. Thetsane
Defence: Mr. Nthethe for Accused 1
Mr. Klaas for Accused 2
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