CRI/T/10/83

IN THE HIGH COURT OF LESOTHO

In the Matter of :

REX Plaintiff

v

LEHLOHONOLO PHILLIP MAKOKO Defendant

JUDGMENT

Delivered by the Hon. Chief Justice, Mr. Justice T.S.
Cotran on the 29th day of December 1983

The accused before me Lehlohonolo Phillip Makoko is
indicted on a charge of murdering Litsietsi Molelekl

(deceased) on or about 28th December 1981 at or near

Ha Mokhothu, TY, in the district of Berea. The accused

pleaded not guilty.

Mr. Moorosi for the accused admitted all the
evidence given (as well as the exhibits produced) at the preparatory
examination in terms of s.273
of the Criminal Procedure and

Evidence Act 1981 and also admitted an affidavit of a
Lt. M.J. Raath of the Forensic Science Laboratory, Private Bag X620,
Pretoria
0001, R.S.A., who the Crown intended to call but found no
necessity of doing so. Mr. Raath had averred that he was in
possession
of a B.Sc degree from the University of Natal with majors
in Biological Science and had 5 years practical experience in this
discipline.
All the evidence adduced at the preparatory examination
thus became evidence at the trial. I do not think this tactic should
be
adopted, except in respect of formal witnesses, on charges of
murder.

The Court, moru motu, and despite counsel's
admissions on the accused's behalf, called important witnesses to
give evidence (even if briefly or on certain
points only) at the
trial, viz, Mrs. Selina Makoko, Mrs. Alice Musa Mohapi,

/Det.Sgt.

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Det.Sgt. Khobatha, Mrs, Nkareng Musa, Det. Trooper
Chakache and Mrs. 'Matukule Cheli.

The facts as established disclose the following:-

1. 
   The accused, a miner, arrived from the mines in
   the
   R.S.A., on or shortly before Christmas day
   1981 to spend the
   holiday in Lesotho.

   
   

2. 
   The accused, who was married but separated from
   his
   wife, lived in a room (in a six roomed
   house) with his aunt Mrs.
   Selina Makoko (P.W. 2
   at the preparatory examination and P.W. 1
   at
   the trial). He shared the room with his brother
   who also
   worked at the mines and who also had
   come to LESOTHO for the
   Christmas holiday.

   
   

3. 
   On the morning of 27th December 1981, the
   accused,
   his brother, and Mrs. Selina's husband,
   all left the house saying
   they were returning
   to the mines. The accused was wearing a
   bluish
   pair of trousers (sometimes described as grey)
   and a
   blue and white striped jersey. Both were
   identified and marked
   Exhibits 1 and 3 at the
   trial and referred to by Lt. Raath
   as
   Exhibits A and C in his admitted sworn report

   
   

dated 17th March 1982.

4. During the night (the exact time of which had

not been established but I think it could not have been
late since people in rural areas go

to bed early) Mrs. Selina Makoko heard a knock at the
door of her room. It was the accused's

voice demanding entry. Since she had already

retired she did not wish to be disturbed and

refused to open the door. Although she did not see him,
she heard him (or rather his footsteps) go into his room, but to get
there
he had to pass a room occupied by children.

The children are young and were not called

/to

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to testify, but Selina says that when she woke up i.e.
on the morning of the

28th December 1981 she did not see the accused and asked
the children about him.

5. A short time afterwards the police arrived
at her
house and inquired about the accused.
Selina told them he was not
there and showed
them the room where he (and his brother)
stayed.
There was a trunk which was
identified by her as being the
accused's.

It was locked but the police forced it open.

Inside the trunk the police found and seized

4. 
   one pair of blue (or grey) trousers
   (Exhibit 1)

   
   

5. one
   blue and white striped jersey

   
   

(Exhibit 3) and

(3) one pair of beige trousers (Exhibit 2)

All these items had on them what appeared like blood
although only "drops" appeared on the beige trousers. In
the room
occupied

by the accused (but not in the trunk) an open "okapi"
knife was found. The blade and handle had what appeared like blood.
This item was also seized (Exhibit 4).

6. Earlier that morning (i.e. the morning of the
28th
December) the body of the deceased with
several horrible wounds
inflicted by a sharp

instrument on her stomach, chest, head, and

arms, was discovered. The chief, Mosiuoa Rats'iu (P.W. 5
at the preparatory examination)

was called first and then the police came under Det.Sgt.
Khobatha and Det. Trooper Chakache. The latter put the time at about
8.00
a.m. and estimated the distance of the place where the body was
found to the accused's house, i.e. his aunt's at Ha Mokhothu, at
"ten
minutes

/fast

-4-

fast walk" and to Mohapinyane's where the deceased
stayed, as at "60 minutes normal walk". On or near the body
were
found the clothes she was wearing (some torn) when last seen
(more about this later) which

included a bra, a brownish jersey, a yellow

and blue striped dress and a hat (Exhibits 5 - 8).

7. The accused and the deceased were seen
together by
a number of witnesses in the
early and late afternoon of the 27th
December
1981 first at the home of 'Matukule (P.W. 8
at the
preparatory examination and P.W. 4

at the trial) where a party, with drinking, music, and
dancing, was in progress, and later at a time given as "4.30
p.m."
by Alice Mohapi (P.W. 4 at the preparatory examination and
P.W. 2 at the trial) walking on the road leading to the accused's

aunt's house at Ha Mokhothu.

8. It has been established with certainty that
the
accused's wife (from whom he was
estranged) was at 'Matukule's
party at
about the same time when the accused and
the deceased
were seen drinking there. The
accused took the deceased for a
dance. The

accused's wife objected strongly to their behaviour at
'Matukule's party but one witness, viz, Nkareng 'Musa (P.W. 3 at the
preparatory
examination and P.W. 5 at the trial) speaks of her
directing her wrath at

both but mostly at the deceased whom she charged with
stealing her husband and father

of her children. The same witness also says that when
the accused and deceased left the party together, the accused's wife
followed

them and threw stones at them. Accused's wife was alone.
The witness last saw the deceased entering a public toilet, the

/accused

-5-

accused following her there, and pushing her out. They
walked together towards Mokhothu's, i.e. the accused's aunt's house.

9. The last person to see them together was Alice
Mohapi. She knew them both. The witness met them going in the
direction of Mokhothu's
at about 4.30 p.m. They were alone. They
waved to (or greeted) each other. The witness saw nothing unusual,

e.g. signs of distress on either. The deceased was
wearing the clothes described and the hat found near her body the
following morning.

6. 
   From about this time until the accused
   sought entry
   into his aunt's room there
   is a gap of perhaps several hours.

   
   

7. 
   The clothes worn by the deceased and/or
   found next
   to her body had according to

   
   

Mr. Raath "human or ape blood of Group 'O'".
Neither the hat nor the shoes found near her body were sent for
analysis.

12. The blue (or grey) trousers and the blue
and
white striped jersey the accused's

aunt Selina says the accused wore when he left her
house on morning of

27th December 1981 and Nkareng says the

accused
was wearing when she saw

them together at around 4.00 p.m. found

in the accused's trunk, had the same blood Group '0' as
did the open "okapi"

knife found in accused's room. There was a beige pair of
trousers in accused's

trunk which was also found to have blood Group 'O'.
There is evidence that the

/accused

-6-

accused and his brother often exchanged clothes and
there is evidence that the accused's wife had a grudge against the
deceased and
there is a gap of some hours between the last time
accused and deceased were seen together and the finding of the body
the following
morning. There were, however, in my view, three vital
facts adverse to the accused:-

(a) the accused said he was leaving for

the mines on the morning of 27th December but had not
because his aunt heard his voice at night when he knocked at her door
whilst
his brother

was not seen anywhere that day after he left the house.
Further his brother

returned to LESOTHO for visits whilst the accused did
not return until early

March 1982. The accused's brother could be excluded,
prima facie, as a

suspect in the crime. The presence of drops of blood
Group '0' on the beige trousers (which the accused was

not wearing) did not unduly worry me because it
was stored in the same trunk as the blue (or grey) trousers and the
striped jersey which
the accused was wearing. The beige
trousers could

therefore coincidently have been soiled with the same
blood group if it was an item of clothing close to those that had
blood

(b) the accused's wife did not figure

anywhere after being seen stoning the accused and the
deceased before 4.30 p.m. She lived in Mohapinyane - "60 minutes
normal
walk" away. The deceased's body was found near the
accused's house, so accused's wife, or her relatives and friends,
could be
prima facie, excluded as suspects

(c) the accused was given the opportunity

to cross examine the witnesses at the preparatory
examination and he opted

to say to the magistrate, at the conclusion of Dr.
Park's evidence (she performed the post mortem examination -

P.W. 1 at preparatory examination) when

/the doctor

-7-

the doctor was still in the witness box:-

"I was going to ask the witness which of the wounds
contributed to deceased's death but I am no more asking her since she
explained
in her evidence and I have no questions since I know the
wounds". The words I have underlined are not unequivocal but
could mean that he, the accused, knows how the wounds were inflicted,

When coupled with the circumstantial evidence
associating

him with the deceased in the events of the late
afternoon of the 27th December, the finding on the following morning
of the clothes
he was wearing at the time, and an open knife blood
stained with what must have been the deceased's blood group (though
common),
the disinterestedness of the witnesses

whom the Court called particularly his aunt Selina who
was his kith and kin and who could not have made a mistake in

the clothes accused wore since hardly 24 hours had
elapsed between her seeing him depart wearing these clothes and
seeing them blood
stained in his trunk the following morning, an
overwhelming case emerged on the evidence of which the

Court may (or could) but not necessarily
would convict. I held that the accused had a case to answer.

The accused decided to remain silent as he is entitled
to do. No onus rests on him at all, so that, if the case for
the Crown is hopelessly inadequate, it matters not one iota whether
the accused decided
to remain silent or makes a statement from the
dock, but when the case for the Crown irresistibly points to his
being implicated
in the crime, the accused's silence will be taken as
one item, amongst

others but within the totality of the evidence, to
determine

whether the Crown has been able to discharge the onus
placed upon it to prove his guilt beyond reasonable doubt. In the

particular
circumstances of this case it has.

It was submitted on accused's behalf that even if the
Court finds the accused guilty of killing the deceased there is no
evidence
upon which the Court could make a finding that he
subjectively intended to murder her because he could have been drunk
or the deceased
could have provoked

/him

-8-

him. I am unable to subscribe to this preposition for
no

evidence was forthcoming, and it can only come from him
about what really happened and what was the state of his

mind
or sobriety.

Applying the principles enunciated in such cases as

State v Theron 1968 4 SA 61, State v Mthetwa
1972 3 SA 766 (and a host of others) the Court is satisfied beyond
reasonable doubt that the accused killed the deceased (unless
he
lects to say something at the extenuation stage) in circumstances
that amount to murder. We find him guilty accordingly.

My assessors agree.

CHIEF JUSTICE 29th December 1983

For the Crown : Mr. Kabatsi For the Accused : Mr.
Moorosi

-9-

Extenuating Circumstances

On the 29th December 1983 the accused was found guilty
of murder. His defence counsel sought time to consult with the
accused on the
question of extenuation. This was granted.

On the 5th January 1984, the accused elected to go into
the witness box and he admitted killing the deceased. He gave details
of what
happened between the time

Alice Mohapi saw them together at 4.30 p.m. of the

27th December 1981 and the killing which took place
about

11 p.m. the same day.

The story is rather long but briefly it is this:-

He did leave home with his uncle and brother on the 27th
December 1981 to return to the R.S.A. They worked in different
mines, however,
and his route was not the same. He had to go by taxi
from TY market to Ficksburg and from there by bus.

He was at the bus stop at about 1.45 p.m. He was not due
to leave to Ficksburg until 5 p.m. and wanted to kill time. He
passed by
'Matukule's house where a party was in progress. He met
deceased there by accident and

not design. He knew her and had had sexual intercourse
with her on two or three previous occasions. At 'Matukule's

he consumed drinks and then went with the deceased to
Machapi, another drinking place on his way to the bus stop. At
Machapi's "hard
liquor" was available. He drank beer and
left the deceased there because he wanted to catch the taxi at 5 p.m.
He got to the
bus or taxi rank at

5 or 5.30 p.m. and saw many people wanting to leave,
there was a large queue, and he also heard that the South African
Police had
closed the border because too many drunken persons wanted
to cross. The accused says he

/decided

-10-

decided to remain for the night and leave on the
following morning.

The Orange Hotel is some 30 yards from the bus stop so
he went for another drink. There was music and merriment. The
deceased entered
the hotel at 8.30 p.m.

and joined him till about 9.30 p.m. or 10 p.m. He then
noticed her walking out and talking to a policeman in plain clothes.
He followed
her out but she remained with the policeman. She "beat
around the bush". He suspected she was having or about to have
an
affair with him. She and the policeman disappeared. He went back
to the restaurant and sat with a friend drinking. At about 11 p.m.
his friend left to park his car. He saw the deceased enter the

restaurant without the policeman. She came to his table.
He asked her where she had been but she refused to divulge this. He
asked
deceased if she would come and sleep with him at home, i.e. his
aunt's home, explaining that she would have retired by that time
and
the children would be asleep, and she could wake up early, wash, and
go, before

any one wakes up. The deceased agreed and she walked
along with him but on the way she said she had changed her mind

and did not want to go and sleep with him because she
was

ill. Accused explains that he was angered by her
attitutde and behaviour from inception, and he did not believe she

was ill. She had spent a long time with the policeman
and he thought she probably slept with him. He himself had had too
much to
drink, she accepted to go to sleep with him and at the last
moment she changed her mind. She apparently wanted to run, he gave
chase,
and a struggle occured in the same area. He then stabbed her
not knowing how many times.

There is no evidence to contradict the accused and we
must perforce accept what he says.

/In

-11-

In his favour we have the following factors:-

8. lack
   of premeditation,

   
   

9. 
   absence of actual intent to kill, i.e. that
   the
   dolus was eventualis not directus.

   
   

10. consumption
    of alcohol,

    
    

11. 
    some element of provocation, although slight,
    on
    deceased part when she first accepted to
    go with accused and then
    changed her mind.

    
    

We do find, with some hestitation, that the cumulative
effect of the above, constitute extenuating circumstances.

It is nevertheless a shocking murder.

Sentence : 14 years imprisonment. My assessors agree.

CHIEF JUSTICE 11th January 1984