IN THE HIGH COURT OP LESOTHO
In the Matter of :
Delivered by Hon. F.X. Rooney on the 11th day of August, 1980
On the afternoon of the 26th March, 1979, the deceased, Bassie Mahase was shot dead by the accused, Lt. Col. 'Mota Phaloane, Head of the Criminal Investigation Department of the Lesotho Mounted Police. The shooting took place near a donga, not far from the village of Ha Korotsoane in the Berea District. At the time of his death the deceased was in police custody following his arrest earlier in some fields near Majaheng. The indictment against the accused alleges murder. Although the shooting is admitted, the accused contends that this was a case of justifiable homicide.
Murder can be defined as the unlawful and intentional killing of another person. The Crown must prove these essential elements beyond all reasonable doubt and in addition it must show that the killing was not performed in circumstances of partial excuse which would reduce the crime to one of culpable homicide. In the present case the killing of the deceased is not in dispute. The main issue is the allegation that the killing was unlawful. The question of intent only arises if the unlawfulness of the act of the accused is proved.
Certain of the events which led up to the shooting are common cause. At about 2.00 on the afternoon of the 26th March, an armed robbery took place at the Standard Bank at Maputsoe. At least 3 men were involved. It is said that about R38,000 in banknotes was taken by the raiders, who fled from the scene in a Peugeot car the property of the Bank's Manager. The police came in hot pursuit of the raiders. At
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Teyatenyaneng the get-away car turned off the main road in the direction
of Mapoteng. A police vehicle followed in the same direction and it
approached close to the robbers' car at Mamathe's. The Peugeot car managed
to execute a u-turn at a circle and it passed the police vehicle and went back
towards the village of Ha Korotsoane. The deceased was recognised as
the driver of the pursued vehicle. The chase continued with shots being
exchanged between the police and the robbers.
Eventually, the Peugeot failed to take a bend on the road near
Ha Korotsoane and it fell into a donga. Two men emerged and fled in
different directions. When the police reached the place where the car had
overturned, they found inside the dead body of an unidentified man who had
sustained gun shot wound in the head. R205 in R5 notes were scattered in the car
and some of them were blood stained. Police spread out over a wide area in
search of the fugitives.
About 4-5 kilometres from Ha Korotsoane lies the village of Majaheng. Near a contour in the fields the deceased surrendered. According to Cheli Cheli (PW 16) he stood up with his hands raised. He wore no shirt, hat or shoes. A policeman found a pistol near the place where the deceased had been hiding, The deceased was immediately bound hand and foot by a rope be longing to Paul Qhobane (PW 10). Cheli Cheli says that the deceased was then assaulted by the police. Another witness Chief Qamo Molapo (PW 3) said the assault was carried out by the villagers before the police present intervened at his instance. Whatever may be the correct version, I have no doubt that following his arrest the deceased was beaten and that some of the injuries found on his body can be attributed to ill-treatment meted out to him when he was already a prisoner. It is however possible that he was injured when the Peugeot fell into the donga.
The body of the deceased was taken to the mortuary at T.Y by Trooper Joel Thokoa (PW 2) who said that the body was delivered at 7.00 p.m. On the following afternoon, Dr. Kang Choi (PW 3) a Government medical officer performed a post-mortem examination. He explained that conditions militated against a thorough investigation of the state of the body. The light was bad, he did not have proper instruments and many policemen were present. Although the witness has served for eight years in the Korean Army as a medical officer, he said he was not familiar with gun shot wounds. He regarded the post-mortem examination conducted by him as superficial. The presence of so many police intimidated him. He produced a report (Exhibit B) which I do not intend to discuss in detail, because on the 4th April 1979 another post-mortem examination was conducted by Dr. Jonathan Gluckman whose findings are not disputed. Dr. Choi made a number of errors, but, he concluded that the cause of death was brain
damage and lung collapse due to gun shot wounds.
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Dr. Gluckman is a specialist pathologist who for the last 13 years has confined his proffessional activities to anatomical pathology. I have no doubt that he is preeminent in his field and this Court is indebted to him for the pains he took to investigate the cause of death "and his lucid exposition of his findings. One of his assistants took a series of coloured photographs during the examination. These comprise Exhibit C.1 to 13. Dr. Gluckman's post-mortem report was accepted in Evidence as Exhibit D.
Dr. Gluckman found evidence of three bullet wounds in the body of the deceased. There was a bullet wound in the chest to the right of the midline. This penetrated the sternal plate and traversed the right lung. The bullet made its exit on the left side of the thorax fracturing a rib in the process. This wound caused bleeding into the plural cavity, but, in the opinion of Dr. Gluckman such an injury ought not to have caused death, if medical attention had been available.
There were two distinct bullet wounds in the head on the left parietal side. These had caused diffused fractures of the skull. Both bullets passed through the brain and the base of the skull. Dr. Gluckman was able to trace the passage of one of the missiles out through a wound on the left cheek. He was unable to trace the further passage of the other bullet below the base of the skull. He was of opinion that the search for the bullet or its fragments would have involved the complete dismemberment of portions of the body, which the circumstances did not justify. Both the bullet wounds in the head were fatal and death was instantaneous.
Dr. Gluckman made a note of the multipleabrasions on the body mostly on the trunk. The only injuries of consequence in connection with this case is the wound on the right wrist (Exhibits C8 and 8a). Although Dr. Gluckman was at first inclined to regard this as the type of wound which could be caused by the graze of a bullet, he agreed that it was also consistent with vigorous handling of a rope or shackle. Another injury to the same hand between the 3rd and 4th fingers might have had a similar origin. In the opinion of Dr. Gluckman all three bullets could have been inflicted in a manner suggested by counsel for the accused. In particular the two shots in the head which entered near the top of the skull were consistent with shots fired at a man coming forward and bending low.
The weapon (Exhibit 2) used by the accused was described by Detective Sergeant T.F.H. Wolmerans (PW 7) of the S.A.P. as a .99 mm service pistol of a design perfected during World War II and now used
4/ extensively as .......
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extensively as a side-arm by military and police forces throughout
the world. With a muzzle velocity of 1,100 feet per second, it is a deadly
effective weapon. It can hold 6 rounds of ammunition and may be used on
either a single action or double action trigger. If the second method is
used there is an automatic reload, whereas in the former case the hammer has to be drawn back each time before a shot is fired. There is a safety catch which it is easy to operate with the right thumb if the pistol is held in the right hand.
The shooting of the deceased took place before a number of onlookers. Some were policemen, only 3 of whom testified before this Court. Other eye-witnesses were at or near a bend in the road about 90 paces away and others were stationed at the village of Ha Korotsoane 400 paces from the scene.
The Court has inspected the area in broad daylight and gained
certain impressions about the opportunities some of the witnesses may have had to observe what was going on. I take the view that from the village of Ha Korotsoane it is possible to see people and movement near the donga, but, impossible to recognise individuals unless dressed in some distinctive garb. A man standing at the place where, it was said, the
deceased was shot was not fully visible from the village. The lower half of
his body lying was obscured by the uneven ground. It follows that a body/on that
spot could not be seen at all.
This is not to say that the evidence of the persons standing at the village as to what they saw or did not see must be entirely disregarded. What they were able to discern from their vantage point is subject to interpretation, but, their evidence may be used to provide support for the evidence of persons who had a closer view of the scene.
My long experience of the courts has taught me what may not be so obvious to a layman. There is no such thing as the perfect witness. Witnesses are either reliable or unreliable according to the many factors which may affect them. Some people are more observant than others and some have better recollections of past events. Some witnesses are more subjective than others and may confuse what they saw or heard with what they were subsequently told. Apart from honest human failings, there are other factors which may render the evidence of witnesses unreliable. These are too numerous
In the present case the events described by the various witnesses took place some 16 months ago. Some of the witnesses gave evidence at an inquest held at Leribe in September of last year. Others were first asked to give their version of the events of the 26th March, 1979, after the commence-
5/ ment of this
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ment of this summary trial. One of these was Bernard Motlaka (PW 15) a trooper in the Lesotho Mounted Police.
Motlaka, who was stationed at T.Y, joined the search for the bank robbers in a police Landrover driven by Trooper Thokoa (PW 2). At one village he changed from police uniform into clothes more suitable for conducting a search on foot in open country. He eventually crossed the Phuthiatsana River and came to the spot near the village of Ha Korotsoane where the robbers' vehicle had overturned in a donga. He says this was about 5.25 p.m. He went up to the village where a crowd of people had gathered.
The deceased was there bound with a rope and a chain. The witness and other policemen escorted the deceased down the road from the village to the donga where the dead body of the slain bandit still lay. The object of this procession was to find the money stolen from the bank at Maputsoe. Some of the police who escorted the prisoner were armed with .303 rifles. When the party reached the place where the. money was supposed to be hidden, the deceased indicated another place ahead.
At this point, according to Motlaka, the accused arrived at the scene. The deceased asked to speak with him. The two men stood talking together. The accused stood with his back turned towards the witness while the deceased was facing the accused. Motlaka did not hear what was said by the two men who, he indicated in Court, were 5 or 6 paces from him. He saw no signs of a struggle. The deceased had shown no signs of resistence to his captors and his attitude throughout was obedient and respectful. He heard three shots. When the deceased fell down he was still bound by the rope and chain. Motlaka explained that he knew the accused as a senior police officer. He had never served under his command. He did not know the deceased before. He was not asked to make a report to anyone during the days following the shooting of the deceased.
Cross-examined by Mr. Erasmus, Motlaka said that he did not see the deceased being shot as the accused had his back to him. The deceased appeared to be leaning forward when the shots were fired. Initially, he had been close to the deceased and the accused who moved away from the group of policemen to speak to each other. He had not seen the accused at the bend in the road before he came on the scene. He said, in answer to a specific question, that the accused was not there, but, in the context in which the witness gave this evidence, I am satisfied that what he intented to convey was that he did not see the accused as he passed down from
6/ village to the
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village to the donga with the deceased and the other members of his escort.
He was frightened by the shots which were unexpected. He was asked about the presence at and around the scene of other policemen whose names were given. Only one of the people mentioned, Captain Mokhochane (PW 5) subsequently gave evidence. Motlaka said he was not there. He did not hear the deceased complain about his being bound up too tightly. He said that the ground was level at the place where the two men stood and that he was on the game level as they were.
After the shooting the accused walked away immediately, got into a car and left the scene. He joined the car at the bend of the road and did not walk up to Ha Korotsoane. He saw Trooper Thokoa bringing his vehicle down to a place near where the body lay. At this stage the witness was on the road changing back into his uniform. Some of the villagers came down towards the donga after the shooting. Motlaka admitted that he had discussed the incident with other members of the police force and exchanged views about what they had seen. After the shooting he saw police bending over the body of the deceased and he assumed that they were untieing the rope and chain.
The witness denied that anyone had told him what he ought to say at the trial. On receipt of a radio message he went to the Law Office and made a statement, in his own handwriting, to Crown Counsel. This was on the 18th July, the day, upon which he commenced giving his evidence to the Court.
In response to a question asked by ray assessor Chief Molapo, this witness said that he heard 3 separate shots at equal intervals. He has been a member of the Lesotho Mounted Police for six years.
I may add that this witness was present when the Court made an inspection of the locus a quo on the afternoon of the 28th July. He stood at the place whore he said he was standing at the time of the shooting and indicated the spot where the accused and the deceased were. The distance between these points was measured 27 paces and the place whore the witness stood was at least one metre higher than the ground upon which the accused and the deceased stood. He was looking down at them.
Mr. Samuel Rahlao (PW 8) is the Assistant Manager of the Standard Bank at Maseru. When he heard about the bank raid at Maputsoe he went to the C.I.D. Headquarters at Maseru and met the accused. He agreed to take the accused and 4 plain clothes detectives to Maputsoe. At T.Y. one passenger was
7/ replaced by
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replaced by another and, they took the road to Mapoteng. Eventually they reached the donga near Ha Korotsoano where the Peugeot belonging to the manager of the Maputsoe branch of the Bank was overturned in a donga. Rahlao saw police examining the vehicle and a dead body. They were searching the area for the two men who had escaped. He proceeded to various places and eventually the accused left Mr. Rahlao's car to join in the hunt for the robbers. The witness went back to Ha Korotsoane. The dead body was still there but the Peugeot car had been removed. Mr. Rahlao drove on to the village. On the way he passed a crowd of police coming down the hill surrounding the deceased, whom this witness knew well. The deceased was clad only in a pair of black trousers. He was tied at the hands with a rope. He heard people shouting about the money and he understood that the deceased was leading the police to the place where it was hidden. no drove his car up to the village and stopped. The police were all down at the donga and among them was the accused.
Mr. Rahlao heard only two shots. Ho could not see well what was happening among the group down at the donga. He did not know what had taken place until he asked one of the police present what the shooting was about. He mot the accused walking up the hill with the others. The accused and other police got into his car. As they left the scene it was dark enough to require parking lights. There was no discussion in the car about the shooting. All that was said was that Bassie Mahase had been shot dead. He took the accused to the Police Station at Maputsoe and heard him speak on the telephone and report that two people had been shot without mentioning their names. The witness was satisfied that the sun was still in the sky when the shooting took place.
In cross-examination Mr. Rahlao said that as the group of policemen and their prisoner passed him on the road there was much noise. He heard a scream before the shooting. He could not see clearly what was happening at the donga as the police were moving about. He painted a picture of some confusion after the shooting with people and vehicles and dust. He did not see villagers run down towards the donga. He did not recall seeing a bus
near the scene.
He did not see a rope around the body of the deceased nor a chain about about his neck or elsewhere.
Mr. Rahlao said that he did not question the accused about the shooting as they left for Maputsoe because he was disgusted when he learned that Bassie Mahase had been shot dead.
Mokete Lesasa (PW 5) was the driver of a bus belonging to the Lioja Bus Company which operates a bus service between Maputsoe and Mapoteng providing a service to several villages in the area.
8/ During the afternoon
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During the afternoon he passed Ha Korotsoane between 5 p.m.
and 6 p.m. He saw a dead body near the bend of the road and many policemen in the vicinity. He stopped the bus at the village where he saw the deceased tied with a rope and chain. The deceased was surrounded by police as he sat on the ground. He was then "pushed
downwards" passing the place where there was a dead body. The
witness heard the gun reports coming from the direction of a place where the
deceased wan surrounded by the police. Many of the police were armed. He saw no struggle or commotion before the shooting. He did not see the accused until after the shots were fired.
After hearing the gun reports, this witness said that he tried to go nearer. He walked down from the village with others. He saw the body of the deceased whose hands were being untied. The police acting under one Major Maputsoe sent the people back away from the place where the body lay. He heard orders being given for the removal of both bodies from the scene. He observed that the vehicle used for this purpose was driven by Tpr. Thokoa (PW 2).
Lesasa claimed to have been familiar with the deceased, but, cross examination revealed his actual acquaintance with the deceased to be slight. The deceased was a man widely known in Lesotho, not only on account of his criminal activities, but, because he was a business man of note. It is not uncommon for people to assume the posture that they are on good terms with person considered famous.
Apart from this witness there was on the bus a conductor Ntai Sello (PW 6) and a friend Hanyane Mathibeli (PW 14). When Lesasa first saw the deceased, his hands and feet were tied together. To enable him to lead the police and walk to where the money was, his hands were separated from his feet and the chain added to his bonds. Prom where he was standing at the time of shooting, this witness could no longer see the deceased after the shots were fired. The witness knew nothing about the movements of the accused, apart from seeing him after the shooting.
Lesasa was not a witness at the inquest. He was first asked to make a statement about the matter on Thursday 10th July, 1980, a few days before this trial commenced on the 14th July. Ho identified in Court a Mr. Moeketsi Ts'asanyane as the person who approached him about the - case. This was on Wednesday the 9th July. He had not known this man before, Ts'asanyane told him that he had learned that he Lesasa was present on the occasion of the death of Bassie Mahase. The deceased had been
The witness agreed and a statement was recorded by Counsel appearing as a junior for the Crown at this trial.
One of the matters which this witness insisted upon was that after the deceased had fallen, he saw policemen untie his hands. He was closely cross-examined on this observation. He said that when this process was going on, the accused had one end of the rope in his hands.
In re-examination the witness revealed that although
Mr. Ts'asanyane brought him to Maseru, he was with another person when he was taken to the Law Office to record his statement. He denied that he had been told what to say by Mr. Ts'asanyane. He had not been subjected to influence and had received no promises.
Lesasa said that the deceased offered no resistence when he was pushed down the hill by the police. Although this witness was cross-examined at great length nothing significant was revealed other than the matters I have already mentioned.
Ntai Sello (PW 6) who is a schoolboy of 17 years was acting as a bus conductor at the time. He appeared to the Court to be at an impressionable age. It would be safer not to rely on his evidence which may be coloured by imagination or by impressions acquired from the conversations of others.
Hanyane Mathibeli (PW 14) was also on the bus driven by Lesasa. He found a person (who was the deceased) sitting on the ground at Ha korotsoane. He was tied with a rope and his hands were close together in front of him. He said that the police present asked for a chain which was given to them by 'Manneko Mese (PW 11). The chain was tied around the deceased at the neck and it went around his body and between his legs. On hearing the gun fire, Mathibeli ran down the hill. He could see many police near the donga, but, not what they were doing. He saw the untieing of the deceased and he mentioned Tpr. Thokoa as one of those so engaged. He said he saw no struggle before the shooting, but, he heard a cry immediately before. He did not know the accused.
Cross-examined, the witness agreed that he did not see the deceased fall. Again this witness was sent to the Law Office by Mr. Ts'asanyane who met him at a bus stop at Maseru and told him he should go to the Law Office to make a statement.
10/ I do not
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I do not propose to make a detailed analysis of the evidence given by the witnesses for the prosecution who remained at the village of Ha Korotsoane, because, as I remarked earlier they were too far away at the time of the shooting to make reliable observations of all that took place However, their evidence is of value insofar as it relates to the presence of a chain on the body of the deceased, the time of the occurrence and to a lesser extend the indications of a struggle before the shooting.
The witnesses in question are Trooper Thokoa (PW 2), 'Manneko Mese (PW 11) and Maolotolotsi Nyapetsi (PW 12). All 3 say that a chain was used to tie up the deceased in addition to the rope. 'Manneko said that it was her chain which was borrowed by the police at first to drag the vehicle from the donga and then to tie up the deceased. The chain was out in her yard and the witness has not seen her chain since the day it was taken. Trooper Thokoa took the bodies to the T.Y. mortuary at 7.00 p.m. He must have left the scene about 6.30 p.m. He says this was about 30 minutes after the shooting. 'Manneko said that the shooting occurred before sunset, as did Maolotolotsi who estimated the time at about 5.00 p.m.
Thokoa said "I did not see any struggle before the police arrived". 'Manneke gave no evidence on this point while Maolotolotsi said that she did not see any commotion or disturbance before the shooting. Other points from the evidence of these three witnesses which I may mention as being of possible significance areas follows .
Thokoa spoke of hearing 3 distinct shots. When he picked up the body of the deceased to take it to the mortuary there was no longer a rope or chain fastened to it. When the deceased was taken down to the donga he did not resist or appear violent or aggressive. He did not notice
the presence of the bus, nor the people running towards where the shooting had taken place. The accused appeared to Trooper Thokoa to be normal. He does not know where Captain Mokhochane was. He could not see who fired the shots. He was not a witness at the inquest and had not made a statement or report about the matter until shortly before the trial.
'Manneko said that when the deceased was brought to the village by the police, he was pushed out of their vehicle and he fell on his back on the road. She went to fetch water to give it to the prisoner. She asked the police to return her chain when she saw them tie up the deceased with it. They did not respond to her entreaties. She said they pulled the deceased down the hill by the end of the chain. She was worried about the intentions of the
11/ police towards the deceased.......
police towards the deceased. She says that she was confused by events. She remembered seeing the bus pass.
Asked by Chief Molapo if she knew the accused, she replied that she did not. However she claimed to recognise the man in the dock as one of the police who were close to her when the deceased was tied with a chain.
The witness Maolotolotsi heard 3 shots. She saw people chased back from the place of the shooting by the police. She saw the bus with Lesasa driving it. The events of the afternoon caused much excitment in the village and there was much talk and screaming. This witness, who gave her evidence on the 17th July, came to Maseru on the day before the trial at the request of Mr. Ts'asanyane and stayed at his house with some other potential witnesses including 'Manneko (PW 11) and Lesasa (PW 5). Many villagers had discussed the events of the 26th March, 1979 and told each other what they had seen. However, she did not suggest what other witnesses ought to say nor was she asked by Mr. Ts'asanyane to give any particular evidence. What she told the Court was what she had observed.
The Commissioner of the Lesotho Mounted Police, General Shadrack Matela (PW 17) said in evidence that on the 27th March, 1979 the accused reported to him that there had been a robbery at Maputsoe on the previous day and that an operation had been mounted by the police to apprehend the suspects two of whom had been killed. The General ordered that all those concerned in the operation should submit written reports immediately. The accused did not put in his report until the 23rd April, 1979. Although the accused was indicated on this charge on the 22nd February, 1980, the Commissioner exercised his discretion and did not have the accused suspended from his duties.
General Matela investigated the case himself at an earlier stage, but, discontinued when he became aware that another secret investigation was under way in another quarter.
The accused is now 55 and is entitled to retire from the Lesotho Mounted Police at any time. The accused and the Commissioner joined the police together as recruits in 1952. He described the accused as a quite man without any aggresive traits. He has a good service record, is reliable and has no reputation for violent behaviour.
I have disregarded the evidence of the brother of the deceased, Tseliso Mahase (PW 9) and I am satisfied that accused did not attempt to disguise the cause of the deceased's death. Mr. J.L. Kheola a Magistrate (PW 1) put before the Court a copy of his record of the evidence given by the accused at the inquest over which this witness presided.
1 / Before
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Before I commence a consideration of the evidence given by the accused and his witnesses, there are certain matters which must be mentioned. Apart from the preliminary investigation conducted by General Matela, the police were not concerned with the prosecution of this case, which was handled by the Director of Public Prosecutions and his staff. This is an unusual feature of the case, but, it does to some extent explain the activities of Mr. Ts'asanyane. I do not know who this person is. He is said to have been a friend of the deceased. He appears to to have collected witnesses and brought them for interview by Crown Counsel at the Law Office, He has maintained some of these people at his house during the course of the trial. Obviously the staff at the Law Office needed someone to find witnesses. Mr. Ts'asanyane obliged them for motives which are not known to this Court. There is nothing inherently objectionable in a layman undertaking such a task as that performed by
Mr. Ts'asanyane provided ho does not produce false witnesses or fabricate evidence in an attempt to obstruct or defeat the ends of justice. I have no evidence that Mr. Ts'asanyane, who was present during the trial was doing anymore than assisting in inquiries which would in any other case be conducted by members of the Lesotho Mounted Police
The defence case was not put to the Crown witnesses. It was sub-mitted that this course of action was not necessary as the Crown had in its possession a copy of the evidence given by the accused at the inquest and was thus aware of the nature of the defence which would be presented to this Court.
The general and accepted practice is to put the defence case to the Crown witnesses, not only to avoid the suspicion that the defence is fabricated, but, to provide the witnesses with the opportunity of denying or confirming the case for the accused. The point was considered by the South African Appellant Division in Rex v. M 1946 A.D. at 1023 where Davis A.J.A. having cited a passage from Phipson on Evidence (7th edition) p. 460 concluded that the quoted remarks "are not intended to lay down any inflexible rules even in civil cases, and in a criminal case still greater latitude should usually be allowed". In S. v P. 1974 (1) 581, Macdonald J.P. held that it is important for the defence to put its case to the prosecution witnesses as the trial court is entitled to see and hear the reaction of witness to every important allegation.
I think it is unfortunate that the Crown witnesses and in particular Motlaka were not given an opportunity of dealing with the accused's own version of the incident. It was certainly not the duty of Crown Counsel to question the witnesses on the evidence given by the
13/ accused at the
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accused at the inquest, as it could not be assumed that he would adhere to that version at this trial. But, the failure to put his case does not in this instance imply an acceptance of the evidence of the Crown witnesses although it may weaken criticism of these witnesses. The evidence for the accused is entitled to the same careful consideration as if the elements of the defence case had been put to the witnesses for the Crown.
The accused described how he left Maseru with Mr. Ranlao (PW 8) to investigate the robbery at Maputsoe. He collected Captain Mokhochane (DW 5) and a trooper at T.Y. and went along the road towards Mapoteng. at the bend near Ha Korotsoane where the raiders car fell into the donga, he met Sgt. Lepelesane who told him of the events of the afternoon including the fact that Bassie Mahase was the driver of the get-away car and that an exchange of fire between the police and the fugitives had taken place. He also heard that the deceased had thrown down a blood stained shirt in a field and gone across the Phuthiatsana River. The accused and his party went to a point where he decided to leave the car and join in the search on foot. He walked through ploughed fields, across the river and up a steep slope to a village. As ho could not find any trace of the fugitives, he walked back several kilometres to meet Mr. Rahlao and Captain Mokhochane on the road to Ha Korotsoane. He drove with them as far as the bend of the road near that village, very tired from his exertion. He was standing at that place when the police came down from the village with a person bound by a rope whom he recognised as Bassie Mahase. The deceased had a swelling on his face. His hands were tied, but, the accused did not know if they were tied in front or behind his back. The deceased and his escort passed him on their way down to the donga. The accused decided to take charge of the group, as the most senior man he caw present was a Sergeant and he was unaware that Major Maputsoe was in the vicinity. He followed the group and pushed ahead to the front. He noticed that the deceased was now leading the group of police back in the direction of the village. This was not the way Sgt. Lepelesane had said the deceased had gone after escaping from the car earlier that afternoon. The accused then instructed the police to search the fields in the immediate vicinity. He and Captain Mokhochane went up to the deceased who spoke to him as follows:
"As you are the senior man present, please loosen my hands at the wrists, this rope is too tight".
The accused looked at the bonds and noted that the deceased's hand were swollen. He ordered Captain Mokhochane to loosen the rope. Captain Mokhochane then slackened the rope and held one end of it in his hand.
14/ The deceased hands ..
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The deceased hands were now bound at the wrist in front of him. The other
police spread out to search the fields as instructed leaving the accused, The Captain and the deceased together.
The accused had on his person that day his service pistol. He held it in his right hand, loaded and cocked with the safety catch in the off-position. The deceased was in front, the accused was two paces behind and to the right, Captain Mokhochane was the same distance from the deceased, but two paces to the left holding one end of the rope which tied the deceased. They crossed the donga. My note of the accused's evidence at
this point reads •
"After a little distance, I noticed that the deceased held me. I had my gun in front, pointing downwards. I saw the deceased rushing towards me. I saw him when he was very close to me. I moved backwards and raised my right arm upwards bent to shoulder level, pointing upwards. He held me by my right wrist with both his hands. I moved backwards, deceased came rushing at me. I moved back and fired a first shot. He bent further forward getting lower. His outstreched hands were at the level of my knee. I moved backwards and fired two shots in quick succession. The deceased fell to the ground in front of me on his face.
At the time of the first shot I was 3 feet away from the deceased, the second shots were fired from the same distance
When the deceased grabbed my wrist I was frightened. I thought he wanted to grab the firearm in my hands. His
movement was unexpected.
I had drawn my firearm because I was of the opinion that the deceased might flee,
I am 54 years. I am 5 feet 4 inches and weigh 146 lbs. I knew the deceased very well. He was much younger than I am. He was strongly built with biceps. I was afraid of the deceased, I would not dare to fight him. At this time of the shooting, I was tired after my long walk."
The accused said that he looked at the fallen man who lay face down on the ground. He partially turned the body over and saw the chest and the top of his head. He concluded that he was dead. He did not pay attention to the hands and he did not notice if they were still tied or not. During the attack on his person, the accused had the impresion that the deceased's hands were untied completely. He did not spend more than 3 minutes examining the body before leaving the scene and walking back up to Ha Korotsoane. On the way he met a Major Lefere and reported to him what had happened. He said that both the dead bodies should be taken to the Hospital at T.Y. He then left in Mr. Rahlao's vehicle. He did not discuss the incident while in the car. He was still shocked and frightened,
and not listening to what was being said.
15/ The accused
- 15 -
The accused said that at the time of the shooting the sun had Bet and it was "almost dusk".
Cross-examined, the accused agreed that on the 27th March, he had been required to furnish the Commissioner with a written report. He did not do so as he was away on patrol. He did not produce the report until his return. He agreed that his report (Exhibit G) was prepared while events were still fresh in his mind. Questioned about the time the shooting took place, the accused estimated that he arrived at 7.00 p.m. He departed 10 minutes after the shooting, at about 7.30 p.m. It was then dark, but, not very dark. Pressed on this point the accused said "at the time of the shooting, it was almost dusk, but, there was still some light. The sun had set."
Before this trial Trooper Motlaka was unknown to the accused. He was asked about other policemen said to have been present at the scene. Ho agreed that some of them had rifles and that the deceased was unarmed. When he first saw the deceased his hands were tied up with a rope which wont around his waist. He did not see a chain. Captain Mokhochane untied the rope at the deceased's wrist. He believed that the Captain had properly tied up the hands of the deceased. He was not sure if his hands had formerly been tied at the back. He was referred to the evidence he had given at the inquest (Exhibit A) where he had been more positive in his description of what Captain Mokhochane had done to loosen the rope. He said that at the inquest he meant to say that he was satisfied that Mokhochane had retied the deceased up properly.
The accused maintained that after the shooting he was not normal as he was frightened. He said this was a natural reaction in a person who had just shot another. When the deceased attacked him he had no time to look at the rope which should have bound him. He had no chance to think only to protect himself.
Although after the shooting the accused had examined the wounds on the body of the deceased, he did not notice if the rope was still tied to him. He agreed that if the deceased hands were still tied it was strange that he should nonetheless attack the witness. He agreed that it was a point of some interest and in particular in his interest if he found the rope after the shooting.
Asked about the chain and the evidence of Troopers Motlaka and Thokoa he agreed that much of their evidence was unchallenged. He noticed that his Counsel had not put certain questions to these witnesses. He said that this was a matter for Counsel.
16/ The accused agreed
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The accused agreed that the area immediate to the shooting had already been searched. At the time of the search the police were not using lights. It was not so dark that torches were required.
The accused did not see the deceased turn before he grabbed him. He was 2 paces in front. The accused was watching him. His hands were in front of him. The police were looking for money and they were being led to it by the deceased.
At the inquest the accused had mentioned the deceased was five paces in front and that he had turned. He did not see the deceased turn and the accused took it for granted that he must have turned. He only saw the deceased when he was close. The first shot was fired at a distance of about one metre from the deceased. He saw nothing afterwards and had no chance to consider if he had hit his target. Although he knew that other police were near, he had no chance to consider that factor. He fired the other two shots directly at the deceased.
The accused agreed that he had freed his right hand from the grip of the deceased before the shooting. He fired because he feared that the deceased might take the pistol and use it on him. It did not occur to the accused to kick at the deceased or to call Captain Mokhochane to come to his assistance. He did not think to throw his gun away out of reach of the deceased. It all happened in a matter of seconds. The accused said that he had no strength to grapple with younger men, although, he had some training in unarmed combat. The accused considered that his life was in danger.
He agreed that the pistol used was a powerful weapon and that the upper part of the body was vulnerable. A police officer with a firearm should not give way to panic. A firearm should not be used indiscriminately and that shooting to kill should only be employed as a last resort. With all these prepositions, the accused agreed.
The accused said that there were at least 4 armed policemen in the area. Up to the time of his attack the accused was subdued and submissive. In the circumstances it was a suicidal act for the deceased to have attacked the accused in the manner described.
Referred again to Exhibit G, the accused admitted that in his report he did not mention that the deceased had actually grabbed hold of him. He explained that it was possible to omit essential points from a report. He had also not mentioned in Exhibit G that the deceased had broken free. He did not see that the deceased had in fact broken loose but he took it that was so.
17/ He followed the
He followed the deceased with his pistol ready to fire. He anticipated a possible emergency. He was not sure that the deceased was securely tied. He did not trust the deceased, who was a well known robber, who had shot at people many times. The deceased might do anything and it was already dusk. If the deceased had got away from the police, he might have escaped from the country. The police wanted him to show them the stolen money and not hide it away for ever.
The deceased was a man who had frequently threatened the members of the Lesotho Mounted Police, including the accused. At the time of the shooting the situation was that the accused had been caught in the act of participating in a robbery, it was almost dusk, his wrists had been loosened and the police had scattered to search the fields. The accused had a feeling that the deceased was not as securely fastened as before. He had not mentioned this to Captain Mokhochane.
The accused denied that he regarded the deceased as a pest who should be permanently removed from society. He had been convicted of armed robbery in the past and the case had been quashed on appeal. The accused as he put it "did not sulk" on account of that. He denied that in killing the deceased he had tried, convicted and executed him.
Chief Qamo Molapo (PW3) is a Senior District Administrator. He was at Maputsoe when the robbers passed him at high speed making their escape. He joined in the hunt for the criminals and he was present near Majaheng when the deceased surrendered to his pursuers. No handcuffs being available, the deceased was trussed up with a rope and put into a police vehicle. Later when he was at the village of Ha Korotsoane, he saw the man who had been arrested from some distance. He could see the rope around him. He passed the party going down to the donga with the deceased. He gave the time as between 6 p.m. and 6.30 p.m.
In answer to questions put to him by Mr.Mdhluli, Chief Molapo said that at the time of his arrest the deceased had asked that he should not be beaten. He said he was willing to go to Court.
This witness did not hear the shots. He did not see a chain. He left when it was becoming dark and put on the lights of his vehicle. Someone told him about the shooting before he left.
DW 4 Detective/Sgt. Lepelesane told the Court that he had informed the accused that the deceased was the driver of the getaway car and that he was one of those who had fired on the police during the afternoon. When the deceased was orought to Ha Korotsoane he was tied with a rope. This witness asked the deceased where he had put the bag which he
18/ had in his hand
- 18 -
had in his hand when he fled from the overturned car. The deceased said that he had left it on the other side of the Phuthiatsana River. When the party went down towards the donga the police were demanding that the deceased show them where the money was.
Lepelesane remained at the village. He could not see properly what was going on as it was "about dusk". He hoard the shots and then he left for Maputsoe without enquiring about them. He indicated that the sun was still in the sky when he left.
Lepelesane told the court in cross-examination that he submitted a report after a few days. The report was to deal with all the events of the day according to the instructions he received. This document Exhibit 7 has put to him. It is undated and the narrative ends with his arrival on the scene of the overturned car and his seizure of the firearms and the blood stained banknotes. It contains no reference to the appearance of the deceased at the village later in the afternoon or to the shots which the witness said he heard. Lepelesane explained that he was reporting about the robbery and not about the death of the deceased. He was not present at that event. He did not hear about the death of Bassie Mahase until he reached Maputsoe. He did not think about the shots he had heard. Although he had been fired on that same day by the deceased, he was not curious. He was tired so he left for his station.
The witness agreed that he saw armed police about. He saw no struggle, his evidence as to the light was obscure. He said the shooting took place after sunset about 6.45 p.m. but, it was not yet time for vehicles to have their lights on. He said "I could see although it was becoming dim towards dusk".
Captain Masilo Ben Mokhochane (DW 5) was present when the deceased was escorted from the village. He was standing with the accused at the bend in the road. Having ascertained who the prisoner was and the purpose of the procession to the donga, he and the accused joined the party. He heard the deceased say "As father Phaloane is present, I should be untied." The police refused this request and they all proceeded downwards. The deceased complained that the rope was too tight. The accused told this witness to slacken the rope. He said that the deceased's hand's were tied in front and not at the back. His hands were swollen. He held one end of the rope as the party continued to look for the money.
19/ The moved
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They moved across the donga in the direction of the village. At first the deceased walked about 1 paces in front of both men, the accused being on the right. The deceased increased that distance to 10 paces. The witness carried a .303 rifle in one hand and the rope in the other. The accused had his pistol in his hand. They walked on looking for money. My note reads .
"I became aware of the deceased rushing at the accused. He held the right hand of the accused. As the acccused moved backwards getting himself loose I hoard a shot. The deceased was continuing to try and get hold of the accused while the latter was moving backwards and at that time there were reports. About 2 seconds between the first and second shots and the last one in quick succession, the deceased fell to the ground."
The witness went on to describe how the accused examined the body before leaving. He saw no chain at anytime. He had no handcuffs in his possession, nor does it appear that any of the police present had or produced handcuffs.
This witness was originally sub-poenaed to appear as a Crown witness, but he was not called. He was not consulted by the accused's attorney until after the close of the prosecution case. He said that the sun had set at the time of the shooting and the light was weak.
Cross-examined, the police Captain said that when he first saw the deceased he was tied tightly in front and the rope went around his waist and between his legs. He said that he untied the rope on one hand only. The hands of the deceased were not then tied at the back. After the shooting the rope was on the ground. He did not discuss with the accused how the deceased had managed to free himself. The accused did not ask him how he had tied the deceased with the rope.
They were walking in circles looking for money. The deceased led them one way and then another. He heard no report that the money was on the other side of the river. This witness said that gone time elapsed between the untieing of the rope and the attack on the accused. He estimated as much as 5 to 10 minutes. At the inquest he said half an hour. He was keeping the deceased under surveillance and looking for the money at the same time during this interval. He agreed that at the inquest he had said in evidence that he had tied the rope securely and that he was familiar with knots. He suggested that the deceased could have freed himself because his hands were swollen and the rope loose. He could not explain how the deceased managed to escape to the extent that the rope was on the ground. He could not have freed himself in a matter of seconds. He felt no tug on the end of the rope which he held.
20/ Captain Mokhochane
- 20 -
Captain Mokhochane made his report on the incident in writing on the 9th April, 1979 (Exhibit K). In it he only mentioned that the deceased rushed at the accused. He did not then say that the deceased had unfastened his hands. He considered that his report was in all respects sufficient. This witness said that although the deceased was acting as if he wanted to grab the accused he did not do so. After the first shot he saw the deceased come bending forward. He had used the word 'stumbling" at the inquest. He said this was caused by the action of the accused in pulling away his wrist. He could not say if the deceased was trying to support himself by leaning against the accused or was grabbing him. The accused pulled himself out of a grip.
Afterwards the accused appeared shocked and he did not say anything.
That concludes a summary of the material evidence heard before this Court. It reveals a considerable conflict confined to certain areas. These are in particular, the manner in which the deceased was tied up, the time of the incident and the movements of the deceased immediately before he was shot three times by the accused.
It is not the duty of the accused to establish the truth of his version of events. It remains the responsibility of the Crown to establish that the accused shot the deceased without lawful excuse.
In approaching the issue of the credibility of the witnesses in this case I have no particular observations, to make regarding demenour. Outwardly at any rate none of the witness gave the appearance that he or she was deliberatly lying. The acceptability of the testimony adduced must to a large extent depend on its contents.
There was considerable discussion as to the time of the shooting. It was agreed that sunset on that day in question occurred at about 6.15 p.m. The preponderance of the evidence was to the effect that the shooting took place before the sun set. If it was too dark for the witnesses to see clearly what took place, it would likewise have been too dark for the police to go searching for money in the fields. In his first report on the incident made on the 23rd April, 1979 the accused said that he and Mr. Rahlao left the scene at 7.30 p.m. By that time it would be completely dark. At the trial he estimated his arrival at Ha Korotsoane at about 7.00 p.m. He remained at the place only 10 minutes after the shooting. Tpr. Thokoa said that he delivered the bodies to the mortuary at 7.00 p.m. and the drive from Ha Korotsoane could not have been accomplished in less time than 20 minutes. I am satisfied that inasmuch as it is an estimate, the accused's opinion as to the time of the shooting was hopelessly inaccurate.
21/ It is strange
- 21 -
It is strange that of all the police present none have come forward with an accurate statement as to the time at which this event took place. All police officers must know the importance of making an accurate note of the time of any occurrence.
I am satisfied that the shooting took place before sunset and that the light in the area was adequate. The probabilities place the event somewhere between 6 o'clock and 6.15 p.m.
'Manneko (PW 11) said that her chain was used to bind the deceased in addition to the rope. The chain was seen by Tpr. Thokoa (PW 2), Lesasa (PW 5), Maolotolotsi (PW 12), Hanyane Mathibeli (PW 14) and Bernard Motlaka (PW 15). Mr. Rahlao (PW 8) drove passed the party escorting the deceased down the hill. He noted that his hands wore tied with rope and that he had no shirt or shoes. He was surrounded by a crowd of police. He could not say if the deceased had injuries. He did not see a chain.
Chief Qamo Molapo (PW 3) saw the rope on the person of the accused from his view point in the village. He did not see a chain, but, it might not have been visible at that distance. This witness's powers of observation are in my view limited. He did not even hear sound of the gunshots. Sgt. Lepelesane (DW 4) said that the deceased was bound with a rope. Neither the accused nor Captain Mokhochane saw a chain. I am satisfied that the evidence of the villagers, taken with that of the two policemen who gave evidence for the Crown as eye-witnesses is correct and that the deceased was bound by a chain and a rope when he was taken down to the donga-Mr. Erasmus submitted that the chain was not an important element in the case. I disagree for reasons which will afterwards appear.
There was some dispute as to whether the deceased cried out first before or just after the first shot was fired. The evidence loads to the conclusion that there was so much excitement, noise and shouting both at the village and at the donga that it would not be possible for anyone to say with certainty whether or not it was the deceased who made utterance. The matter is not of any importance.
Mr. Erasmus submitted that the incident between the deceased and the accused involved a movement so quick as to pass unnoticed. He submitted that to describe it as a struggle was a misnomer. For the people standing at the village, interpretation of events taking place at a distance of 400 paces was indeed difficult. But that critisism cannot apply to a witness such as Motlaka whose position was such that he would be expected to have seen any attempt by the deceased to tackle the accused.
22/ Motlaka's evidence
- 22 -
Motlaka's evidence was the subject of detailed critisism by Defence Counsel. He had for instance said that he heard 3 separate shots at evenly spaced intervals while there was plenty of other evidence, including the nature of the wounds on the top of the head, that indicated that the second and third shots followed each other in quick succession. Indeed, some of the witnesses said they heard only two shots. I agree that in this particular case Motlaka is probably wrong, but, that does not establish him as an unreliable witness, the whole of whose evidence must be rejected. He was brought into this case at a late stage and was being asked to recall an event that took place over a year previously. Some inaccuracies are inevitable the circumstances.
It was held against Motlaka that when giving evidence in Court, he gave a much shorter distance between himself and the accused at the time of the shooting than he did when he was at the locus. No doubt his presence at the scene assisted his memory and he was honest enough to demonstrate that his previous estimate was not correct. Other minor points of difference between his evidence and that of other witnesses do not in my view discredit him. He answered all the many questions put to him without hesitation or evasion. Motlaka was giving evidence against a senior officer charged with murder. There was no suggestion that he bore any grudge against the accused. It is a well known tendancy for members of professional groups to assist each other when in trouble and to do so beyond the limits of the Law. Obviously Motlaka was not influenced by any such consideration.
Motlaka was close to the scene. He stood on higher ground and he had a good vantage point from which to observe any movement in front of him. It was submitted that ho might have reconstructed what he saw from an imperfect memory. In this instance it was what he did not see that is of prime importance. He saw no attack by the deceased upon the accused. In his evidence in chief Motlaka said that after the deceased has fallen ho was still tied with the rope and chain. Whan these objects were taken from the body, Motlaka was back at the road some 90 paces away. Ho saw people bending over the body and he interpreted the movement of those people to mean that they were removing the rope and chain.
When Trooper Thokoa (PW 2) went down to collect the dead body of the deceased there was no chain or rope on it. If Motlaka is correct they had already been removed from the body. The chain has not been seen again.
Nothing was said by any of the other Crown witnesses which detracted from the evidence of Trooper Motlaka in any material particular.
23/ Support for
- 23 -
Support for Motlaka's evidence as to the untieing of the hands of the deceased after the shooting is to be found in the evidence of Lesasa (PW 5).
Taken as a whole the Crown case presents a picture of a man bound with ropes and chains being hustled down to the donga by a crowd of armed policemen demanding that he should indicate the whereabouts of the stolen money and of his being shot dead shortly afterwards.
The accused is a policeman of experience. In the course of his duties he shot dead a man who to his knowledge was something of a bandit. The shooting took place, not in hot pursuit, but after the man had been taken prisoner and while he was surrounded by a largo contingent of police many of whom were armed. The accused ought to have anticipated that he would be required to give an account of his action. He must be well aware of of the importance which is often attached to the first account of an occurrence which a witness relates.
The accused was in no hurry to answer the Commissioner's ©all for a report from all those present at the shooting, although he was the principal person involved. Pour weeks after the event, the accused made this statement in his report.
"Basie knows me very well, he saw that I was holding a pistol. Most of the police including Captain Mokhochane were holding the rifles. We were going down in a scattered form following Basie behind. Basie claimed that the rope which tied him on the wrists was too tied and requested that it be loosen. I instructed Captain Mokhochane to loosen the ropes and keep hold another end of it.
Basie was about 5 paces from me. I saw him turning quickly and rushed quickly to me. I jumped to one side and
I noticed that he wanted to take a pistol from me, I then fired around at him. He bend down to get hold of my feet, I moved back again and fired two shots at him.
I then noticed that he was dead."
A postscript to the statement reads :
"At the time Basic rushed to me he had already unfastened the rope from his wrists."
The accused did not say in that statement that Bassie had caught hold of his wrist. He does not oven say that when he fired at the deceased he believed that his life was in danger, much less establish a basis for that belief. The phrase "I noticed that he wanted to take a
24/ pistol from me"
- 24 -
pistol from me sounds suspiciously like an excuse.
The statement put the time of the incident firmly between 7.00 p.m. and 7.30 p.m. when it would be dark. There was some advantage to be gained from the suggestion that the incident took place when the light was bad rather than in broad daylight in the present of many witnesses. The accused knew that in the event of an inquiry he had to explain how and why he shot the deceased. The statement contains the germ of an idea that was considerably expanded by the time the inquest took place.
In the course of his evidence at that inquiry the accused clearly recollected how the hands of the deceased were originally tied at the back and that when Captain Mokhochane loosened the rope, he re-arranged the position of the deceased's hand to the front of has body. He said that he was satisfied that the deceased's hands were properly tied. It was also recorded at the inquest that after the shooting he asked the Captain how he had tied up the deceased and he received the reply "I do not know". The accused was unable to explain how the deceased had untied himself. In his evidence to this Court the accused was far less definite about the position of the hands of the deceased before and after Captain Mokhochane loosened them.
Now, if the accused is telling the truth, the deceased managed to free himself from his bonds. How he did this remains a mystery. The accused made no attempt to solve the mystery when the deceased lay dead before him after the shooting. He did not even note whether the hands of the corpse were still tied. One would have expected that the position of the rope in relation to the body was of vital importance in view of what had just occurred. The accused did not turn to Captain Mokhochane or to any of the other police present to demonstrate what had happened or seek confirmation of the movement of the deceased. Instead, having made a cursory examination of the injuries inflicted upon the deceased, the accused left the scene and did not discuss the shooting with anyone. To Bay that he was frightened and shocked into silence by the violence comes strange from the mouth of an experienced police officer. If he is telling the truth he behaved more like a timid schoolgirl than a Lt. Colonel in the Lesotho Mounted Police.
Difficult as it may be to explain how the deceased managed to break out of the rope, it would strain credulity to an intolerable extent if the deceased was in chains as well. Hence the real importance of the evidence that 'Manneko's chain was used to make additionally secure the
25/ person of the
- 25 -
person of the deceased after his feet had been freed to enable him to walk.
The accused's evidence derives much support from Captain Mokhochane a fellow officer. He wrote his report (Exhibit K) on the 9th April before that of the accused. His account of the shooting was brief. It reads .
" This man was already fasten with ropes on hands. I was one of the police who escorted him down to where he said was going to get out money. He was then loosen to speed out the search as was getting dark. He suddenly rushed to Mr. Phaloane and Mr. Phaloane fired him for about. three times and he fell down. It was as if he wanted to get hold of him. Mr. Phaloane tried to dodge him but still followed him.
It was get dark already That's all."
Again there is the emphasis on the darkness. The Captain does not say that it was he who loosened the rope on the deceased. The
loosening was not to relieve pain, but, to "speed out the search. There is no mentioned of the deceased getting hold of the accused. In fact it is quite the reverse. If the deceased had laid hand on the accused I would not expect the Captain to say "It was as if he wanted to get hold of him".
As a fellow officer Captain Mokhochane may be more inclined to assist the accused in his predicament than were the other policemen. The witness was, expanding his initial report to produce comprehensive testimony in favour of the accused. In one important aspect they differ. Captain Mokhochane puts the loosening of the rope on the deceased's hands at some time before the attack. The accused said it was done almost immediately before. Maybe the captain has less faith in the credibility of the theory that the deceased escaped immediately after his hands had been retied.
I am satisfied on the evidence and my assessors agree with me, that at the time of the shooting the accused was standing talking to the deceased who was tied up with a rope and a chain, injured and exhausted and in no mood to make a suicidal rush at a man armed with a gun. In other words, the defence evidence is rejected as being untrue. The accused has his own reason for finding excuses for his conduct. The fabrications of Captain Mokhochane, even if they are promoted by the desire to help a colleague in trouble are shameful and bring dishonour not only on
26/ himself but
himself but on the police as a whole.
I am satisfied that the accused, fired at the deceased three times without lawful excuse and considering the nature of the weapon used, with intent to kill. My assessors are in agreement with this finding of fact but, they have expressed reservation about the verdict which should follow upon such a finding in view of the apparent lack of motive disclosed by the evidence.
However, intention and motive are not the same concepts in law and it is possible to have one without the other. The fact that the accused intended to kill the deceased when he fired on him is something that stands alone. His motives are subjective, whatever they may have been, they are not relevant to his guilt.
No submissions were made to the Court by either Counsel in regard to a possible alternative verdict. The view I take of the evidence is that even if the story told by the accused was true, and the deceased somehow contrived to attack him, he was not justified in shooting him and was at the very least guilty of culpable homicide. I need say no more on that score because the version of the accused is rejected.
It is still necessary for the Crown to prove that the deceased offered no provocation, as that term is defined by the Criminal Law (Homicide Amendment) Proclamation 1959.
I do not know what was said by the deceased to the accused while they were talking together before the shooting. The accused has not chosen to tell us, and the deceased is dead. Maybe they said nothing to each other of any significance. I do not propose to speculate. In the absence of any evidence at all I do not propose to held that the deceased might have said something which was an insult of such a nature as to be likely to deprive the accused of the power of self control. The Crown's obligation to prove lack of provocation does not require a Court to abandon evidence for speculation. However, I have considered whether or not the actions of the deceased that afternoon could have mounted to provacation. He had robbed a bank and fired at police officers one of whom Sgt. Lepelesana was under the command of the deceased.
27/ The police are
- 27 -
The police are often exposed to violence. Risk is an element with which they are obliged to live with and expect. The accused has a long career behind him in the police and no doubt has experienced in the past, the dangerous activities of criminals of all kinds. It would be stretching the doctrine of provacation too far to say that as the police were fired upon this amounted to a sudden provocation as defined by the statute. The accused was not himself involved in cross-fire that day. In my view there war no partial excuse for the action of the accused which might reduce his offence to one of culpable homicide.
The accused is therefore found guilty of murder as charged.
11th August, 1980.
For Crown. Mr. Mdhluli
For Defence:Mr. Erasmus
I have given consideration to the question of extenuating circumstances in this case. Although the decision as to whether there are extenuating circumstances is one that I alone am required to make, I have consulted my assessors who are men of wisdom and knowledge, in order to assist me in reaching a decision.
The onus rests upon the person convicted of the crime of murder, to shew that extenuating circumstances exit.
There can be no doubt that when an accused person gives evidence which the court finds unacceptable, it places the court in great difficulty to say that the onus has been discharged.
The court must look at all the circumstances of the case without going into the realm of speculation and reach a conclusion. ••••••••••••••••••••••••••••
It seems to me that without this Court having any indication of the
state of mind of the accused, other than from objective factors,
when he went to speak to the deceased and while he was speaking
with him succumbed to a sudden impulse ....
.............there is no reason to believe that the accused
deliberately set out on that day to kill the deceased.
The circumstances as disclosed by the evidence do not support that
The question is. What happened that sparked off the fatal
It is not without some difficulty that I have decided that the lack of premeditation is a sufficient factor to held that there are extenuating circumstances in this case.
Ten years imprisonment.
IN THE HIGH COURT OF LESOTHO
In the Application of :
'MOTA PHALOANE Applicant
Delivered by Hon. Justice F.X. Rooney on the 11th day of August, 1980.
Mr. Erasmus moved the Court, from the bar for an order releasing the appellant on bail.
The Court advised Mr. Erasmus that a formal application was required under the rules, but, that he should submit his arguements and the Court would indicate what its attitude to a formal application would be.
After hearing Counsel the Court informed Mr. Erasmus that a formal application would be dismissed.
F.X. ROONEY JUDGE
11th August, 1980.
For Applicant : Mr. Erasmus For Respondent : Mr. Mdhluli
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