IN THE HIGH COURT OF LESOTHO
In the Appeal of : MAKOLO SEPHEKOLA )
THABO J. ABRAHAM ) Appellants
TSEKO T. ABRAHAM )
TANKISO QENESO )
Delivered by the Hon. Mr. Justice F.X. Rooney on the 30th day of May, 1980
The four appellants were convicted of culpable homicide on the 26th October, 1979. They were each sentenced to two years imprisonment. On the 8th May I allowed the appeals of the fourth and third appellants in their entirity. In the case of the second appellant I altered the conviction to one of an assault with intent to do grevious harm and I reduced his sentence to one of six months imprisonment to run from the date of his original conviction. I reserved judgement in the case of the first appellant.
The proceedings against all four appellants commenced before a magistrate at Qacha's Nek on the 13th September, 1979 by way of a preparatory examination into an allegation of murder. The incident which gave rise to the prosecution occurred in March, 1979. The appellants arrested the deceased Hlehle who was accused by the first appellant of slaughtering one of his sheep. A witness Lesoana Malepa (P.W.4) testified that the four appellants, all on horsebacks, chased the deceased and were seen "hitting the deceased with sticks and sjamboks. It was dark I did not see the weapons clearly". The witness admitted that ho was about 200 metres away from the place where the deceased was assaulted.
Another eye-witness Ntjalireng Motsoane (P.W.5) also watched the assault in the course of which the first appellant used a stick, the second appellant both a stick and a sjambok and the third and fourth appellants sjamboks. The witness was also 200 metres from the scene, which, he said
/ it was not too dark ....
— 2 —
it was not too dark to see.
Seven days after the assault, on the 14th March, the dead body of Hlehle Letsie was taken to the Sani Pass Border Post by one or more of the appellants. Between the time of the arrest and his death, Hlehle had been kept by the first appellant at his cattle post.
D/Trooper Tsita found that the dead body had injuries all over which appeared to him to have been caused by a sjambok. There was blood on the nostrils, and the upper front teeth were broken. This police officer collected sticks, one from the first appellant and another from the third appellant after these weapons had been pointed out to him by those suspects respectively.
Mr. Gray who appeared for the appellants at the preparatory examination and at the trial accepted as evidence a post mortem report produced by the prosecutor. Mr. Gray stated that the reception of this report would not prejudice the accused persona.
I agree with Mr. Gray as the post mortem report submitted was a useless document and a disgrace to whomsoever compiled it. In the first place, it was written in an almost illegible script. The signature is indecipherable and the maker of the report gave no qualifications other than "M.O". The name and professional status of the person who performed the post mortem on the body of the deceased must remain a mystery which
ought have been solved if the magistrate had thought fit to enquire into the matter and record his findings.
Assuming that this document could properly be used in evidence at the trial despite its anonymous character, its substance was too obscure to be of any assistance. It gave the cause of death as 'neurogenic shock, unrelieved'. Apart from the remark. There were whip marks all over the body even in the lateral aspect of the thigh there were no other notes or comments of any significance on the printed form. Nothing of value can bo derived from the document admitted in evidence.
At the trial none of the witnesses who gave evidence at the preparatory examination was recalled. All four appellants gave evidence.
Both the first and second appellants admitted assaulting the deceased with sjamboks at the time of his arrest. They both said that the third and fourth appellants did not participate in the assault. In recording
/ his verdict ...
his verdict the magistrate said Although P.W.4 and P.W.5 said it was dark and they did not see weapons used, it is evident that deceased was assaulted by the four accussed. I don't accept their version to say accused 3 and 4 did not take part. If they were aiding and abetting they were socii criminis and liable as principal offenders .
While I accept that these words reflect the opinion of the magistrate something more is required. He must show that his opinion is well founded on the evidence. He does not say how he was satisfied that all four accused took part in the assault or why he rejected the evidence of all four appellants that the third and fourth appellants did not strike the deceased. The magistrate's reference to 'aiding and abetting' reveals the weakness of his reasoning. The question to be answered was - Were the third and fourth appellants active participants in the assault or were they merely aiding and abetting it by giving encouragement to the other appellants. It was not suggested that it was unlawful for the appellants to arrest the deceased as a suspected thief. (It may have been, but, that was not an issue before the court). There was nothing to show that third and fourth appellants had agreed to the boating of the deceased, which might have made them socii criminis. The case against them can not be supported unless it is shown that they had agreed not only to arrest the deceased, but to beat him as well. Their mere presence on the scene is in my view insufficient to make them socii criminis and for this reason their convictions were sot aside.
In the case of the second appellant, he admitted striking the deceased about 10 times with a whip and in the circumstances I was satisfied that ho was guilty of the offence of an assault with intend to cause grevious bodily harm.
The deceased remained at the cattle post of the first appellant for about six days before he died. His body was found to bear the injuries testified to by Detective Trooper Tsila. The first appellant admitted hitting the deceased twice with a sjambok at the time of his arrest. He did not explain the extensive injuries found on the body including the broken teeth. He lamely suggested that the deceased's body might have suffered this damage in the van taking the corpse from Sani to Mokhotlong.
It is reasonable to infer from the circumstances of the case that the deceased was subjected to ill treatment by the first appellant after the initial assault. It has not been proved beyond reasonable doubt that
ho died as a result of the beating or torture to which ho was subjected. I set aside the verdict of culpable homicide and I substitute a verdict of guilty of an assault with intent to cause grevious harm.
/ The first ....
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The first appellant was primarily responsible for the extensive injuries inflicted upon a defenceless man. I consider that a sentence of 12 months imprisonment is an appropriate punishment in his case. The sentence shall run from the date of his conviction.
30th May, 1980.
For Appellants . Mr. Sello
For Crown Mr. Muguluma
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