CRI/T/33/84

IN THE HIGH COURT OF LESOTHO
In the matter of

REX
v

1. 
   LEFU MALATA

   
   

2. 
   LETOALA MALATA

   
   

JUDGMENT

Delivered by the Hon. Chief Justice T.S. Cotran
on
the 16th day of January, 1986

The two accused before me Lefu and Letoala Malata who
are brothers of the full blood are indicted on a charge of murdering
Thabiso
Mokoma (the deceased) on or about the 9th July 1984 at or
near Bopheletsa in the district of Berea.

The defence admitted the depositions of Dr Sendyose
(P.W.I at the Preparatory examination) who carried out the post
mortem, the cause
of death and the identification of the deceased,
Mathibela Semethe (p w. 3) at the Preparatory Examination) who with
others, were
first to find the deceased's body, Mphou Mphou (P.W. 6)
a herdman who deposed that A1 asked him if the deceased (who was also
herding
in the vicinity) had dogs

The depositors of the three Police Officers Det. Trooper
Ntlaloe, Det Trooper

Khoele, Det Lt. Masupha ( P.W s 7, 8, and 9 at the
Preparatory Examination) were also

admitted save at A1 (and not A2 as recorded at the
Preparatory Examination) was the
the person who handed the trooper
the knife blade (Exhibit P3).-

These depositions should form part of the appeal record
if there is an appeal.

There were three eye witnesses of the incident one of
these was Mphou Mphou who has already been mentioned. The second,
was Lebohang
Polane ( P. W. 1) a lad

/of

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of 15, who testified that he had arranged with the
deceased to graze their respective cattle together in the veld on
the outskirts
of the village He and the deceased were at a distance
of 1b - 20 paces (pointed) from each other. At about 1 p.m A1
arrived. He
went to the place where the deceased was standing and he
saw them engaged in a conversation The deceased carried a cane and a
"lesiba"

- a small hollow piece of wood used as a horn type
musical instrument The
conversation appeared to the witness to be
normal there was no quarelling or
shouting. A short while later A2
arrived with a number of large dogs Without any
ado A2 struck at
the deceased with a stick twice which the latter warded off. A1
also
struck the deceased with a stick but the witness did not know where
it landed.
Deceased is said to have had with him two puppies. The
dogs of A2 were set on the
deceased They chased him followed by A1
and A2 The deceased disappeared in the
fields apparently felled
onto the ground by the dogs The witness could see sticks
coming
up and down The deceased himself could not be seen because maize
stalk
stood higher A1 and A2 walked away.

Malefetsane Matsietsa (P.W.2 was in the veld, some
distance away (80 paces

- pointed) from the previous witness. He was with
Mphou. He says that Polane
(P.W.I) and the deceased were close to
each other or together when A1 passed him and
Mphou and enquired
if the deceased had dogs with him The witness answered that
deceased
had three puppies A1 went up to deceased and they started talking
The
witness could not hear the conversation (Polane PW 1 could not
hear it either) but
it appeared to this witness also that it was a
normal conversation. A2 then came
with seven dogs, five large and
two puppies. He went to the place where deceased

was
standing with A1 and without saying a word struck at the deceased
twice Deceased warded off the blows and retreated, but A1 and
A2
felled the deceased down inside the maize field. The witness could
not see what they were doing to him or on which part of the
body they
were hitting him but the deceased did not rise again.A1 and A2 took
direction of their home village. Polane and Malefetsane
say they were
so terrified that they did not go near the deceased. They collected
their cattle and returned home not informing their
parents about what
they have seen.

A1, who

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A1, who elected to give evidence on oath, testifies that
the previous evening he had lost R20 note en route from the village
of Ha
Makebe(where he had been) and his own village Ha Leluma. In the
early morning of the following day - 9th July - he took the same
route to see if he could find it. He did not and was on his way back
home walking along a path when he met deceased herding his cattle
in
the veld. A1 saw P W 1 and P.W 2 herding but they were not together,
nor where they were with deceased, he Confirms that he saw
P W.2 and
Mphou along the way but did not speak to them or greet them because
they were some distance away. He did not ask them if
deceased had
dogs. A1 says he stopped and asked the deceased if he found a R20
note The deceased answered in the negative A1 then
says that he
told deceased that his brother A2 (who was not yet at the scene) had
been complaining that he, deceased, had been threatening
to shoot him
(i.e A2) with a gun A1 added that the deceased was at the time
allegedly accompanied by one Sekete According to A1
the deceased
replied that whilst it was true that he carried a gun it was not true
that he threatened a2 with it it so happened that
he had it when A2
was passing by. A1 then says he asked deceased why ho went to the
place where his stock was grazing carrying a
gun and looking for a
sheep and yet they were"co-villagers"? Deceased is alleged
to have replied that he had no evil intentions,
he was just looking
for a missing sheep which belonged to him and which may have got
mixed up with A1's and A2's. A1 says that at
that juncture A2 arrived
and aimed two blows at deceased who was however able to ward them
off. Deceased ran away. A1 denied that
the dogs were set on deceased
They just followed deceased A2 who was in front, was trying to
restrain the dogs From attacking deceased
and succeeded. The dogs
were set on to attack the deceased When A1 arrived at the scene, he
says deceased produced a pistol A1 says
he produced a knife and
"used it" when he was fighting the deceased He was fighting
with a knife (which broke) whilst deceased
was fighting with a pistol
A1 says he stabbed the deceased but does not know where and also
struck him on the head with a stick
A1 wanted to disable him only
He left deceased sitting on his buttocks but alive and walked away
with his brother.

A2

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A2 testifies that the relations between his family and
that of the deceased had been very unhealthy For a long time -
perhaps since
the year 1972 or 1973 In 1984 before the incident ,
deceased drove a vehicle at him halting it at the last moment as he
(A2) jumped
aside The cause of deceased's (and his family) wrath was
due apparently to their respective cattle mixing together A2 speaks
of
another occasion when A2 was sitting with a friend in the village
and deceased passed by carrying a rifle He aimed it at A2 and
threatened to shoot

A2 adds that on the date of the incident he woke up in
the morning and found that his brother A1 had already left He took
the family
cattle out to herd in the veld but not in the same
vicinity as the deceased, Polane and Malefetsane (P W 1 and P W.2)
However, he
felt thirsty and took a path down a donga where there is
a well to have a drink when he suddenly saw his brother A1 and
deceased
He knew they were not on good terms and actually heard them
exchanging"hot and strong words" the type that would lead
to
a fight. They were about to fight He had four dogs and two pups
and deceased had one dog and two pups. His dogs went for A1 and
deceased and he tried to restrain them On reaching the deceased he
struck at him with his stick twice but those were warded off
The
deceased re­treated but A1 outran him (A2) to where deceased was
and he saw his brother A1 striking deceased on the head
once He did
not notice anything else. At the time that hs and he is brother
left, deceased was sitting down. He was not dead

A search was mounted by the deceased's father Hekethe
Mokoma (P.W 3) when the deceased did not turn up at sunset. The
first search
was mounted on horses but it yielded nothing A second
search was conducted using a vehicle and torch lights. The body was
found
at about 3.00 .a.m The chief was informed and then the police
at Teyateyaneng who arrived at the scene at sunrise.

/The

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The injuries of the deceased were described by his
father (P W.3). Det Tpr Ntlaloe (P.W 8 at the Preparatory
Examination), and by
Dr Sendyose (P W 1 at the Preparatory
Examination) There were some 14 stab and cut wounds apart from
bruises on the body and injuries
on the anterior of the head shown in
diagrams attached to the completed post mortem report, Exhibit
P.8 and in photographs of some of the wounds taken by Det. Lt
Masupha (P.W 10 at the Pre­paratory Examination). The doctor
testified
that some were consistent with being inflicted with sharp
object, others with a blunt object. The cause of death was loss of
blood

The father of the deceased had said in evidence that
pieces of flesh or muscle were cut from the region behind the knees
and from
around the ankles which were exposed to the bones. I think
he was trying to suggest that his son was killed for ritual medicine
purposes
but this is not born out either by the facts or by the
medical evidence According to the doctor the tendons were cut but he
did
not elaborate on this. Photos 1(a) - (d), to the untrained eye,
show however some suspicious kind of wounds but for the purpose of
this case we must accept there is no ritual medicine murder
implications.

Despite some minor variations in the evidence of the eye
witnesses there is no doubt that they told the court substantially
the truth.
I do not think it matters whether the deceased had two
pups or three pups or one dog and two pups. Nor does it matter IT A2
had four
dogs or five. What is important is that according to both
witnesses, after A1's enquiry about what dogs deceased had with him
A1
and deceased were engaged in what appealed an ordinary
conversation Polane was in fact very close to A1 and the deceased.
A2's statement
therefore that when he came across A1 and deceased on
the way to the well that "hot and strong words were exchanged"
can
only be false. Wo find it to be false.

The fact that A2 immediately on his arrival struck at
deceased and set upon him the dogs is indicative of a preconceived
intent to
harm the deceased which A1 knew of at inception, or joined
later. There was no medical evidence of dog

-6-
bites. Dogs usually go for clothes and ankles and
may not necessarily bite.

The evidence of A1 that he lost R20 note does not ring
true nor is his evidence about the deceased producing a pistol He
and A2
bore the deceased and his family a great grudge The grazing
places in the area are well known It is not difficult to find the
deceased
on the veld if he had gone there to graze the animals.

The Crown submit that they have been able to prove, not
so much by direct evidence as by inference, that A1 and A2 had
conspired to
murder the deceased and that this was not a chance
medley. My accessors and I find it difficult to escape the inference
that A1 and
A2 had arranged before hand to have an encounter with
deceased at a place where he can be found, where assistance may not
be readily
at hand, and where they would have the upper hand by
having with them-vicious dogs, reinforcing themselves with sticks and
a knife

Assuming, however, there was no prearrangement between
A1 and A2 to kill or do grevious bodily harm to deceased, there are
circumstances
where the legal subjective intent can rise at the spur
of the movement. If, therefore, the court is wrong in inferring that
a conspiracy
existed before hand, the facts as believed show that A1
and A2 had arrived at a common purpose instantly and did encompass
the death
of the deceased though the common intent arose shortly
before or at the time the deceased was attacked by A2 We find that
the deceased
was battered to death at the hands of the two accused in
circumstances that amount to murder

The defence argument is that only A1 can be found guilty
of (at most) culpable homicide because he told the Court he did not
intend
to kill, and that 42 could only be found guilty of assault
common because the two blows aimed at deceased missed him

With respect this argument can hold no water The
evidence of the two eye­witnesses cannot be ignored. We find them
witnesses
of truth with no axe to grind.

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Both A1 and A2 were seen striking the deceased. The dogs
were set on him and either the dogs or the two accused or one of them
felled
him on to ground. The sticks of the two accused were going up
and down The sticks were hitting the deceased and no one else
because
the numerous injuries admit of no other inference. Neither of
the accused persons had a scratch on his body and they did not
complain
of injuries to anyone. The pistol itself is a figment of
A1's imagination.

In my opinion both accused are guilty of murder and I so
find. My assessors agree.

T.S. COTRAN CHIEF JUSTICE

16th January, 1986

For Crown Mrs Bosiu
For Defendant Mr. Khauoe

Extenuating circumstances having been found A1 and A2
are sentenced to 15 years imprisonment each

CHIEF JUSTICE 16/01/1986