IN THE HIGH COURT OF LESOTHO
In the matter of:
TAELE SEKONYANA SETSOKOTSANE SEKONYANA
Delivered by the Hon. Mr. Justice B.K Molai on the
2nd day of March, 1984
The two accused pleaded not guilty to a charge of murder
on the allegations that on or about the 17th December, 1982 and at or
Ha Sefoli in the district of Maseru they each or both unlawfully
and intentionally killed one 'Mapuseletso Motja.
At the commencement of the trial, Mr. Kolisang,
for the defence, admitted the depositions made by Ts'eliso Motja,
Puseletso Motja, Piti Taole, D/Sgt Polanka and Dr. Jagues who
respectively P,W 1, 3,5,6 and 7, at the proceedings of Preparatory
Examination. The admissions were accepted by Miss Jorxxxx,
Counsel for the crown, and it became unnecessary, therefore, to call
the deponents as witnesses. The report of one L.P. Neethling,
Major-General in the South African Police attached to the Forensic
Science Laboratory in Pretoria was also admitted and accepted
evidence in terms of the provisions of Section 273 of the Criminal
Procedure and Evidence Act, 1981 He too was not called
as a witness.
It was not really disputed that the deceased and the two
accused lived in the same village of Ha Sefoli and the deceased was
a relative of the accused who were the children of her
cousins. On the afternoon of the 17th December, -1982, the deceased
her house without disclosing to Puseletso Motja, her daughter
who was at the time a nursing mother and with whom she lived, where
2/ going to
going to. When she left home, the deceased was wearing
a blue shirt (blouse), a greenish dress, a shawl and a doek.
According to Puseletso, her mother, the deceased, did
not return home until it was bed time and she was already in bed at
she heard the voice of the deceased calling out her name
outside the house She, at the same time, heard footsteps and
like a stone hitting the roofs of the house. Someone
caught hold of the handle of the door of the house in which she was
She screamed, presumably out of fear, and did not dare go
out of the house. It was not until dawn of the 18th December, 1982
she ventured out and noticed the doek which the deceased had
been wearing when she left home on the afternoon of the previous day
lying in the open in the vicinity of the house. It was then that she
started making inquiries about the whereabouts of the deceased.
Later that morning, Puseletso had to go to relieve
nature when she saw a person lying next to the graveyard at a stream.
an alarm. Of the people who responded were Tseliso Motja
(the younger brother of the deceased's husband), PW 2, Mosiuoa
(the father of accused 2), Piti Taole (The Chief of the
area) and PW 1, Nketjoane Makheneng (the brother of the deceased).
came to deceased's house where they found her children weeping.
In the vicinity of the house, they noticed, apart from the doek,
sjambok and a cordroy hat which were identified as the property of
accused 1. When they came to the person who was lying next
graveyard at the stream, they identified that person as the deceased.
She was already dead. The spot whore the body of the
lying was over 200 yards or about a mile away from her house
and out of view from the house itself.
The body of the deceased was lying in a pool of blood.
It was resting on its stomach with the head facing down the slope.
were stretched apart, the panty was torn and together with
the dresses lifted up so that the buttocks were exposed. There was
3/ discharge coming out ...
discharge coming out from the vagina thus suggesting
that the deceased had been raped. There was also faeces from the
clothes and buttocks were soiled with faeces all over.
She had weals on the body, scretches on the neck and an open wound on
mouth. She was bleeding from the mouth and nostrils. It was
simply a horrible sight and Ts'eliso Motja's testimony was that he
had to get a blanket with which he covered the body.
The evidence of P.W.1 was that on the 17th December,
1982, there was beer selling at his house in the village. The
deceased and the
two accused were among the people who came for
drinks at his house. He confirmed the evidence of Puseletso Motja
that among the
clothes that the deceased was wearing on that day were
the blue shirt (blouse), the greenish dress, the shawl and the doek.
that accused 1 was wearing a cordroy hat, a pair of
blue geans and its shirt. He was also carrying a sjambok. The
sjambok and the
hat were the ones which were found in the vicinity of
the deceased's house on the morning of the 18th December, 1982.
was wearing a khaki dust coat.
After sun set people started dispersing from P.W.1's
house but the decensed and the two accused remained behind. When the
were eventually leaving that night, the deceased suggested to
him that as it was late she would go in the compnay of the accused
whose home were not far from hers. PW.1 was positive that there was
no quarrel of any sort between the deceased and the two accused
they were at his house and the three left together peacefully. I
shall return to his evidence in a moment.
The evidence of accused 1 who testified on oath before
this court was slightly different. He denied that while at P.W.1's
17th December, 1982, he was wearing the pair of blue geans.
According to him he had put on the geans before going to P.W.1's
while he was removing stones which had fallen into his kraal.
The stones were heavy and he had to place them on his laps to lift
them on to the kraal. In the process his geans and
4/ its shirt respectively ....
its shirt respectively got soiled from the zip down to
the knees and the sleeves with cow dung. When he went to PW.1's
place, he therefore,
had to change the geans and put on a pair of
velved trousers. He conceded, however, that he was wearing the blue
shirt. The reason
for not changing it was that the sleeves which
were soiled with cow-dung could be folded up.
As it will be shown later in the judgment, on 18th
December, 1982, accused 2 handed the pair of geans to D/Sgt Polanka
and told him
that he had been wearing it on the previous day. All
the witnesses who saw the pair of geans and its shirt in the morning
day and while the stains were still fresh testified
positively that they were soiled with faeces and not cow-dung. I
have no good
reason to doubt their evidence which I, therefore,
accept as the truth.
Regarding P.W,1's evidence that until they left his
house on 17th December, 1982, there was no quarrel between the two
the deceased, accused 1 told the court that after he and
accused 2 had come to P.W.1's place, he bought 6 cans of beer which
next to where they were seated. The deceased then came and
took one of the cans of beer and drank it without permission. He
1) did not like what the deceased was doing. It was accused
1, however, who reprimanded the deceased for having taken the can of
beer without permission. Notwithstanding his disapproval of what the
deceased was doing, accused 1 did not even report the instance
owner of the house. Indeed, accused 1 confirmed the evidence of P.W
1 that when at the end of the day they left in the company
deceased, they were all three talking cordially. In the
circumstances I find accused 1's story highly improbable and am
to believe P.W.1's version that there was no quarrel between
the accused and the deceased while they were at his house on 17th
Accused 1 further told the court that when they loft
P.W.1's place, it was about 10.00 O'clock at night. There was no
it was a dark night. While they were at P.W.1's place
the deceased had been asking accused 2,
5/ who worked at
who worked at a place where they sprayed maize crops, to
buy her an empty tin of insecticide. Accused 2 told her
that he had no money with which to do so. After they
left, P.W.1's place and were on their way home, the
deceased persisted in her request for an empty tin
of insecticide and eventually threatened accused 2 witn
words : "Motho o tla holela mobung joaloka tapole"
i.e. "a person will grow in the soil like a
By that accused 1 understood the deceased to mean that
she would kill accused 2 or a member of his family.
2 was apparently offended by those words and
to assault the deceased. Accused 1, however,
intervened and stopped him.
When they came next to her house, the deceased again
pestered accused 2 about the empty tin of insecticide and repeated
words. She also called accused 2 a rug. It was then
that accused 2 hit the deceased a blow on the mouth with a fist. The
fell to the ground, accused 1 tried to intervene but accused
2 pushed him away and he also fell to the ground As he got up from
ground accused 1 saw accused 2 kicking the deceased on the face.
The deceased got up and he intervened He noticed that the deceased
was bleeding from the mouth and not through the nose. It was at the
time he was intervening between the deceased and accused 2 that
shirt got some blood stains. He then took accused 2 bo his home
after which he also went to bed. They left the deceased standing
the forecourt of her house shouting and hurling insults. He told the
court that it was at the time he took accused 2 home that
his sjambok and hat next to the deceased's house. He denied that he
had anything to do with the death of the deceased.
Accused 1 himself
conceded that if there were a person inside the deceased's house
that person could have heard the deceased shouting
insults on the forecourt.
It is to be remembered that Puseletso was in the house
on that night. Although she heard some scuffle and the voice of the
calling her name only once she certainly did not hear the
deceased shouting and hurling insults on the forecourt
6/ Assuming accused 1 .....
Assuming accused 1 was telling the truth when he said
they left P.W.1's place at 10 O'clock and there was no moonlight, and
no reason to doubt him on this point, the question is how
could he be so positive that the deceased was bleeding from the mouth
not through the nostrils. As it will be seen later in the
judgment, accused 1 told people, including a police officer who
him about his sjambok and the hat found in the vicinity of
the deceased's house, that he had lent the hat and the sjambok to
2 and not that he had forgotten them. Although accused 1 was
aware that accused 2 had injured the deceased he did nothing to
the later. He could not even report the incidence to the chief
area. Instead he just took accused 2 to his house and
he himself retired to bed as though nothing had happened In my view,
1's story is palpable with so many improbabilities that it
would be unreasonable to accept it as the truth.
Now, coming back to his evidence, P.W.1 confirmed that
following a certain report, he proceeded to the deceased's home and
where her dead body was found on the morning of the 18th
December, 1982. He informed the people who had gathered around the
of the deceased that he had last seen the deceased going in the
company of the two accused on the previous night.
The accused were sent for and P.W.1 was one of the
people who went for them. He found accused 1 at his parental home
him before the chief at the deceased's home Questioned
about his hat and sjambok that were found next to deceased's house,
1 explained that he had lent thorn to accused 2. When P.W 1
pointed out that he had been wearing a pair of blue gears on the
afternoon, accused 1 denied it.
When P.W.1 and P.W.2 came to his home,
accused 2 was still in bed. P.W 2 got into the house
and pulled him out of the bed. He noticed that accused 2's khaki
which was placed on the chair had faeces and blood stains.
He took it to the chief. It was also
7/ noticed that there
noticed that there were blood stains on one of the heels
and hands of accused 2. He was asked about the whereabouts of the
he had been wearing on the previous day. He said they were
under the bad. P.W.2 brought them and it was found that there was
blood stains inside one of the shoes. Questioned about the
blood stains and faeces on his clothes, accused 2 explained that he
them at his place of work where he had been slaughtering sheep.
P.W.2 pointed out that accused 2 was working where they were spraying
maize crops and not at a butchery.
It may be mentioned at this juncture that accused 2's
blood stained khaki dust coat and shoe together with deceased's
also had blood stains were subsequently sent by
D/Sgt Polanka to the Forensic Science Laboratory in Pretoria for
and the results of the test carried out by the expert,
one L.P Neethling, were that the stains on the articles were those of
blood and belonged to blood ground A. There can be no doubt,
therefore, that accused 2 also lied when he said the blood stains on
his clothes were those of sheep blood. It would be naive to suggest
that rural people living in the villages where they daily see
cow dung and sheep excrement cannot differentiate between human
faeces and cow
dung or sheep excrement, I am inclined to accept the
evidence of the witnesses who positively testified that what they saw
deceased and accused's clothes was faeces and not cow dung or
sheep excrement. The accused were,in my view, not telling the truth
when they said their clothes had been soiled by excrement of sheep or
cow dung I find it difficult to believe that the fact that
deceased and accused's clothings were soiled with faeces could have
been a mere coincidence. It obviously arose a suspicion
accused were connected with the killing of the deceased. The police
were, therefore, sent for.
D/Sgt Polanka confirmed that he received a report
following which he proceeded to Ha Sefoli where he found the dead
body of the deceased.
It was in the condition that has already been
described. He noticed some ground disturbances around the spot where
the body was
lying. There was also a spoor from the place where the
body of the
8/ deceased was lying ....
was lying- up to the deceased's house. He confirmed that a
sjambok and a hat claimed by accused 1 were found in the vicinity of
He also found the deceased's doek, some faeces,
blood stains and a sum of 40 . He was shown a Khaki dust coat and a
pair of black
shoes which were claimed by accused 2. They all had
blood stains. He vent with the accused to search their homes. In
house he found a belt which was somewhat twisted as if
though it had been used to tie something It had blood stains. At
accused 1 gave him a pair of blue geans which he said he
had been wearing on the previous day. It was clearly soiled with
which as already pointed out the accused said was cow-dung
The police officer took possession of all those articles, cautioned
and charged the accused as aforesaid.
It was common cause that the body of the deceased was
subsequently conveyed to Queen Elizabeth II Hospital. Ts'eliso Motja
the body before Dr. Jagues who performed the post mortem
examination on 21st December, 1982. He found that the deceased had a
cut and bruises on the upper lip, some abraisions on the left
side of the face, large bruises underneath the sculp, swelling of the
brain on the occipital region. As there was neither a fracture of
the skull nor any laceration of the skin of the skulp, ho formed
opinion that the deceased had received a heavy blow from a blunt
instrument with the resultant brain damage which was the cause
From the evidence, it is clear that there is no direct
evidence of who has killed the deceased. The decision on this point
entirely on circumstantial evidence. The cardinal rules of
logic which govern the use of circumstantial evidence in a criminal
are, as Watermeyer, J.A. once put it in R. v. Blom 1939 A.D.
188 at pp. 202, 203
"(1) The inference sought to be drawn must be
consistent with all proved facts. If it is not, then the inference
9/ (2) .
(2) the proved facts should be such that they
exclude every reasonable inference from them save the
one to be drawn. If they do not exclude other reasonable inferences,
must be a doubt whether the inference sought to be drawn
In the present case there is evidence that on the night
of 17th December, 1982, the deceased left P.W.1's house in the
the two accused and was consequently assaulted outside her
house. When it was found next to the graveyards at the stream the
of the deceased had sustained the injuries already described.
It was bleeding through the nostrils and soiled with faeces which
also oozing from the anus.
On the morning of 18th December, 1982;, some faeces and
blood stains were found outside deceased's house. There was also a
leading from the vicinity of the house up to the spot where the
dead body of the deceased was found, thus suggesting that the
who was bleeding and excreting, was carried from the
vicinity of the house to the spot where her dead body was found.
There is, therefore,
the possibility that whoever carried the
deceased from the vicinity of the house to the spot where her dead
body was found could
have got soiled with blood stains and faeces.
Accused 1 conceded that the blood stains found on the
shirt he had been wearing on the night in question was that of the
I have, however, already expressed the opinion that his
description of how the deceased was assaulted outside her house and
got the blood stains on his shirt could not be the whole
Although accused 2 is alleged to have claimed that the
blood stains found on his clothes were those of sheep blood the
Neethling, admittedly found that they were not. They
were in fact the blood stains of human blood belonging to the same
A as those found on the blouse that had been worn by the
Moreover, there was evidence which I have accepted that
the clothes which the two accused had been wearing on the night in
were also soiled with faces, I find
10/ it difficult
it difficult to believe that the blood stains and faeces
found on the clothes of the two accused and the deceased were mere
Considering the evidence as a whole therefore, I am
convinced that the two accused are the persons who, acting in
concert, have assaulted
and inflicted upon her the injuries that
result in the death of the deceased.
The only question remaining for the determination is
whether the accused had the requisite subjective intention to kill.
however, be reached by any of our five senses. It is a
matter to be inferred from either the words or the actions of the
If the deceased was brutally assaulted and sustained
injuries on the upper portions of her body in the manner described by
of the medical officer and the other witnesses, there is
no doubt in my mind that the accused were aware that their action was
to result in the death of the deceased. They nonetheless
acted regardless of whether or not death occurred. That being so, it
be accepted that they had at least the legal intention to kill.
The question of provocation which was raised by the
defence, in my view, depends on whether or not the court accepted,
version that there was provocation by the deceased. I
have found accused 1 to be unreliable as a witness and. it would be
to say I now believe his uncorroborated evidence that the
deceased had provoked the killing. Likewise, on the question of
I have accepted the evidence of P.W.1 who actually saw
the two accused and the deceased at the time they left his house on
of 17th December, 1982. In his evidence, P.W.1 told the
court that the three were not very drunk. That in my view, is no
to substantiate the suggestion that the accused were so
drunk as not to be able to form the intention to kill. My view in
is fortified by the fact that having assaulted her, the
accused subsequently had the wisdom to carry the deceased about half
away where she could not be easily seen from the house. That,
in my opinion, is not consistent with the suggestion that the
11/ accused were
accused were people who were so drunk that they did not
know what they were doing or could not form the intention to kill.
In The light of all that has been said it is clear that
I take the view that in assaulting her, the accused had the requisite
intention to kill the deceased and accordingly convict
them of murder.
Both my assessors agree.
JUDGE. 2nd March, 1984.
For the Crown : Miss Moruthoane, For the Defence:
There was some evidence suggesting that the deceased had
been raped. That was, however, not conclusively proved. Although it
hoped that the accused did not rape the deceased and
subsequently try to cover their beastly act by killing her, the
that they did so remains. A salient question is whether
or not people in their sober senses normally do things like that. In
view, the reply is in the negative.
On the evidence, I have rejected the contention that the
accused were, on the night in question so drunk as to be incapable of
what they were doing or form the intention to kill. There
was, nonetheless, evidence
which I accepted that the accused had been drinking at
P.W.1's place and as they left were to some degree intoxicated.
It is trite law that in murder cases intoxication
nay be taken into account as a factor tending to reduce he moral
blameworthiness of the accused person
or an extenuating circumstance
warranting a lesser sentence than that of death - see S.v. Ndhlovu
1965(4) S.A. 692 at p. 695. In the result I come to the
conclusion that extenuating circumstances do exist in the present
case and the proper verdict
is that of guilty of murder with
My assessors agree.
Each 9 years imprisonment.
B.K. MOLAI, JUDGE
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