CRI/A/30-33/86 IN THE HIGH COURT OF
In the matter between:
MOTSOSI MAHLEKE 1st Appellant
SEISA NAILANE 2nd Appellant
NTSALA PITA 3rd Appellant
SEBAPALA MAHLEKE 4th Appellant
SELLO THAKALI 5th Appellant
v REX Respondent
Verdict was given by the Honourable Acting Mr. Justice
M.L. Lehohla, on the 24th day of June, 1986 and
undertook to submit reasons for judgment.
Here do they now follow:
The above appeal came before this Court on 24th June,
A preparatory examination was held at Teyateyaneng
following the death of one Kolisang Molise.
At the close of the Preparatory Examination the accused
were committed for trial to this Court on a murder charge but later
of Public Prosecutions gave directive that the case be
remitted to the subordinate court on a charge of Culpable Homicide.
The case for the Crown rested on the evidence of six
witnesses. However, Mr. Ramodibedi for the appellants chose to
cross-examine only P.W.2 Detective Trooper Seboka, P.W.3 Khoase Pita
and P.W.4 Lekhotla Mahleke.
The facts of the case reveal that the deceased Kolisang
Molise had had some differences with one Molele Mahleke resulting in
of the latter.
The appellants who were fellow-villagers of both the
deceased Molise and Molele Manleke were also closely related to the
P.W.1 'Maseabi Mahleke gave evidence which showed that
on 6th January, 1985, he. in his capacity as a chief received a
which he went to Khoase's home where he found Molele
Mahleke dead. Thereupon he started looking for the alleged killer
the deceased. He had apparently locked himself up in
Khoase's house. The chief remained at the door and sent for the
Before the police could arrive, all the appellants told
P.W.I that they wanted the 'eceased who had killed their brother. The
refused to open the door but was removed therefrom by force
amidst his protestations that their actions were unwise as enough
had been spilt already.
Appellant 1 was at the door trying to break it in order
to gain entry. Appellants 2 and 3 were digging at the side of the
house built of mud, while Appellant 5 was on the roof
removing the thatching from the rafters. Appellant 4 is said to have
at the door while all this was taking place. The
appellants then started throwing stones through the hole opened on
the roof.. Later
the deceased was heard saying "Ichu, you have
At that time Appellant 1 was seen at the top of the
roof. He afterwards came down, opened the door, dragged the deceased
out and belaboured
him with a stick until he died. The other The
other appellants did not. participate in the assaults' at this stage
for they are said
to have just stood by armed with sticks.
Through cross-examination Mr. Ramodibedi was able
to establish that P-W.2 was not telling the truth when he said
Appellant 1 said: "I am killing this person because
killed my brother" as this statement was not borne out in the
Preparatory Examination record. Asked why he lied like
said it was because he is illiterate!! The witness admitted that he
had lied and further he had no reason to expect the Court to
rely on his evidence. The witness said he was frightened by what he
had seen and ran away. He was related to
the deceased and had been
too far to hear what the deceased said nor could he see well what
happened. He could not gainsay a statement
that deceased was
attacking Appellant 1 with a knife which he had just used to kill
Molele Mahleke. Nor could he gainsay the statement
that Appellant 1
was defending himself by hitting the deceased about, twice with a
stick, nor that the aim of Appellant 1 was to
arrest deceased for
killing Molefe. This knife was later found at the scene of crime.
In keeping with the story advanced by the eye witnesses
for the Crown that Appellant 1 was belabouring the deceased F.W.2
Seboka said he-observed numerous injuries on the body of the
deceased.. In sharp contrast to this
evidence was the medical evidence given by P.W.6 Dr.
Gotink who performed the post-mortem examination. In his report he
that the deceased only had a wound on the left side of
the back of the head plus two small wounds on the right upper leg.
consist with the alleged belabouring of the deceased and
numerous wound; observed on him.
P.W.4 for the Crown pointed out deceased was a dangerous
man fighting Appellant 1 with a knife and that he was intent on
any of the Mahlekes. The deceased had been heard earlier by
this witness saying "Your mother's front passages
Safokeng. I have been long telling you that I will kill you,"
While uttering these words he was carrying a stick and opening
knife and making for P.W.4 in a threatening manner with the result
that P.W.4 ran away.
The Crown's attitude as indicated in the heads of
argument is that "this is not a case in which it could press for
of the finding of the Court a quo". The
Crown further conceded that there are a lot of serious discrepancies
in the prosecution's evidence which ought to be decided
in favour of
the appellants. The Crown further submitted that "it is quite
clear that the accused's story might probably be
In its supplementary heads of argument the Crown
submitted that the sentence of three years' imprisonment was too
harsh in the exceptional
circumstances of the case and that the
learned magistrate erred in imposing a uniform sentence upon
each of the appellants regardless of the degree of the
alleged participation by each and personal circumstances
of each. With this submission I agree.
However, Appellant 1 in re-examination told the Court as
"Where had you hit the deceased as the result of
which he fell ......? On the head.
You said when he fell you hit him twice. What I ask is
you hit him twice while he was on the ground ....? While he was on
Where did you hit him ...? I was confused I did
Tell the Court where you hit him ?
It is with regard to the statement contained in the
above quotation that I feel that Appellant 1 exceeded to some extent
All appeals against conviction and sentence for Culpable
Homicide are upheld.
The verdict in respect of Appellant 1 is altered to read
"guilty of common assault". Appellant 1 is sentenced to one
andhalf years' imprisonment the whole of which issuspended for two years on condition that he be not convicted of
a crime involving violence committed during the period of of
(M.L. LEHOHLA) ACTING JUDGE
For Appellant - Mr. Ramodibedi
For Respondent -. Mr. Seholoholo .
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